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Military Issues

Further Readings

Military Society
The term "military" refers to the society within the armed forces and the individual lives of professional soldiers. The professional armies of early Europe grew to be societies separate from civilian societies with special laws addressing unique needs. While civilian criminal law seeks to maintain peace and tranquility, military justice promotes order, high morale, and discipline.This difference is recognized in the U.S. Constitution. Through its constitutional powers, Congress established a military justice system with its own laws, procedures, and courts, including the court-martial, a military court thattries members of the armed services for crimes described in the Uniform Codeof Military Justice. This system, one of the largest judicial systems in theUnited States, largely parallels state and federal civilian systems.
Origins of Modern Military Justice
Like civilian law, military law derived from Roman law dating back to the first century B.C. Roman society was a military society and a single justice system served both civilian and military needs. Following introduction of the Roman legal system in England in the eleventh century by William the Conqueror,the desire for separate legal systems grew. Courts-martial involving trialsconducted within the military appeared in France and Germany around the sixteenth century. In the early seventeenth century, Gustavus Adolphus, the influential King of Sweden, adopted a body of military law separate from English common law to discipline his army. Courts-martial procedures were soon introduced within the English military and England created a national military legalsystem by 1649. Parliament became involved in military justice with the passage of the Mutiny Act in 1689 thus setting the English precedent of legislative control over military issues.
Weeks after the epic confrontation between colonial militia and British troops at Lexington and Concord, Massachusetts in April of 1775, the Second Continental Congress formed an American army. The colonial leaders who orchestratedpolitical rebellion against Britain suddenly had to decide how to insure discipline and control in the new armed forces. Of less interest at the time were individual "rights" of the soldiers. The 1775 Articles of War established the basis for American military justice. Influenced by the British legal system, the colonists adopted a system in which the main national legislative bodywas responsible for enacting military law. The colonists, essentially copying the British body of law, believed that a system developed from the successes of two empires, Roman and Britain, would be difficult to improve upon undersuch urgency. The founders observed that the "prosperity" of nations in history corresponded with the level of military discipline in their armies.
The Constitution in 1788 further defined military authority by designating the president as commander-in-chief in Article II and giving Congress power inArticle I "to declare War . . . to raise and support Armies . . . to provideand maintain a Navy; To make Rules for the Government and Regulations of theland and naval Forces . . . " Civilian control over the military was firmly established. The Court in Dynes v. Hoover (1857) reaffirmed that Congressional power to regulate servicemembers was clearly separate from Article III of the Constitution, which established civilian judicial authority. The federal government exercised its constitutional authority by conducting the first draft of men into the army during the Civil War.
Over the next century, Congress passed legislation on several occasions revising the Articles of the Constitution. Commanding officers held powers for court-martial as a key tool to maintain order and discipline. The officer couldconvene a court, select the members from officers in his command, and serve as the reviewing authority with power to disapprove a sentence and return it to the court. The Articles of War did not originally include common law felonies, such as murder, assault, rape, and larceny. In 1863 the role of commanderexpanded to include court-martial jurisdiction over such crimes, but only intime of war or rebellion. For the first time soldiers could be tried by military authorities for common law offenses. The Court in Ex parte Milligan (1866) held that this new court-martial jurisdiction did not extend to civilians.
In World War I Congress passed the Selective Service Act of 1917. On chargesthat the draft violated the Thirteenth Amendment prohibition of servitude, the Supreme Court upheld the law in a series of cases known as the SelectiveDraft Law Cases (1918). The Court unanimously ruled that the authority to draft came from the war powers and the Necessary and Proper Clause. The Thirteenth Amendment was not intended to prohibit duties individuals owed theirnation, such as military service and jury duty.
The basic Articles of War, first written in 1775, remained largely unchangedthrough World War II. Critics charged that the military justice system was essentially "un-American" with commanding officers holding almost unrestrictedpower over judicial proceedings. They attempted at times to push major revisions through Congress, but achieved only limited success.
Following World War II, returning veterans expressed substantial dissatisfaction with the harshness and arbitrariness of the military justice system. An investigative board established in 1946 found that commanding officers held too much control in the courts-martial process, often leading to excessive punishments and unfairness in the treatment of officers and enlisted men. In response, Congress created the Uniform Code of Military Justice in 1951 placing divergent laws of the varied services into one law composed of 140 articles. Under the code's authority, the president established evidence rules and courts-martial procedures in a Manual for Courts-Martial. The Manual, which followed civilian federal court procedures and punishments as much as feasible, became the basic source of military justice authority along with the Constitution, the Code, various service regulations, and the U.S. Court of Military Appeals. The Court of Military Appeals, created by Congress, is the highest courtin the military judicial system, and is composed of three civilian judges appointed by the president for 15 year terms.
Reflecting the special needs for order, efficiency, and discipline, three levels of courts-martial were established: summary, special, and general. The summary court-martial is the most limited in scope, applying only to enlisted personnel charged with minor offenses and serves to resolve cases quickly. This form varies significantly from civilian criminal processes, as certain rights do not apply. The intermediate level, special courts-martial, can addressall cases except capital offenses. Composed of three-judge panels, it is limited in the types of punishment it can apply. General courts-martial, the mostpowerful trial court in the military judicial system, can address any violations of the Code and may impose death penalties. The proceedings must includea military judge and no fewer than five panel members. The Military JudicialSystem procedural safeguards protecting the rights of servicemembers becomemore extensive as the severity of the alleged crimes increase. The courts-martial trials primarily apply to servicemembers committing crimes on military posts or while wearing a uniform. When someone violates both military and state criminal codes, they may be tried in either system. Jurisdiction over servicemembers ends when they leave the military. Regarding actual court proceedings, few differences exist between civilian and military trials. However, though the Code extends almost all procedural constitutional protections to the military courtroom, the commanding officer still retains considerable power. In 1968 Congress passed the Military Justice Act granting more power to military judges over court proceedings and limiting the commanders' powers.
Shortly after the creation of the Code, cases addressing the distinction between military and civil criminal systems began to reach the Court. In Orloff v. Willoughby (1953) the Court held that the civilian courts "are not given the task of running the Army." Through the separation of powers doctrine, the Court in Parisi v. Davidson (1972) further recognized the autonomy of the judicial military system. The U.S. Supreme Court holds no authorityto review military cases using writs of certiorari powers. It can accept habeas corpus petitions, however, alleging constitutional rights violations for those being detained and cases challenging military jurisdiction. For example, the Court in Middendorf v. Henry (1976) ruled that summary courts-martial proceedings do not constitute criminal prosecutions and are therefore not held to the same standard of due process. The courts have also refused involvement in a range of national security issues by invoking the"political question" doctrine. The doctrine defers resolution to the two political branches of government.
The Code describes certain punishable offenses very similar to civilian crimes, though it does not distinguish between felonies and misdemeanors. Such crimes include homicide, sex offenses, property and theft offenses, and alcoholand drug-related offenses. Sex offenses include rape, adultery, and indecentassault.
Many other offenses in the Code do not appear in the U.S. justice system. Other offenses treated severely in the military are relatively minor in civilianlaw. Obedience to authority is an essential and unique part of military society. Being "absent without leave," or AWOL, is the most common offense in themilitary. Violations of general orders, disrespect or contempt for officials, and insubordination are other forms of disobedience crimes. Mutiny, which involves efforts to override military authority and the failure to report mutiny, are capital offenses. Desertion, the intent to avoid hazardous duty or important service, is also one of the more serious offenses a servicemember cancommit. The Persian Gulf War led to substantial challenges by members of theall-volunteer military. In United States v. Thun (1993) a servicemanwas convicted of desertion for avoiding a Persian Gulf assignment.
Yet other crimes unique to the military are not so precisely defined in the Code. These crimes are addressed as "conduct unbecoming an officer" under "General Articles." Such offenses give commanders a great deal of flexibility inmaintaining order and discipline, but critics claim they are unconstitutionally vague. The Supreme Court ruled in Parker v. Levy (1974) that they were neither vague nor overbroad, but rather served a specific function uniqueto the military in maintaining obedience and discipline. As the Court noted,the military was "a society apart from civilian society." Conduct Unbecomingapplies only to commissioned officers while the General Articles applies toboth officers and enlisted personnel. Both address a wide range of conduct that could "bring discredit upon the services." A General Article charge may accompany any other Code violation. Conduct Unbecoming includes making false official statements, uttering defamatory statements about another officer, public drunkenness, disorderly conduct, and adultery. The Court of Military Appeals in United States v. Frazier (1992) upheld a soldier's conviction for maintaining an intimate relationship with another soldier's wife.
All civilian crimes are addressed through judicial processes. However, as themilitary has some unique offenses, it also has unique procedures to maintaindiscipline and morale without holding courts-martial. These means include "nonpunitive measures" and "nonjudicial punishment." Because the military regulates such a broad range of behavior and to ensure efficiency of command, a commanding officer has authority to apply "nonpunitive measures" for minor Codeviolations. Relevant behavior includes neglect and inattention, shoplifting,intoxication, fighting, writing bad checks, and driving under the influence.Such measures could involve withholding privileges, counseling, reductions in rank, reassignment of duties, and revocation of security clearances. Complaint procedures allow for review of the commander's actions.
"Nonjudicial punishment" provides actions commanding officers could take forminor offenses to maintain discipline and morale without holding a court-martial. Such action is appropriate when "nonpunitive measures" are inadequate. Punishments are limited and the accused can consult with legal counsel but hasno Sixth Amendment right to representation of an attorney. The accused coulddemand trial by court-martial and has a right to appeal results of the informal hearing. Despite the fact that a court-martial lacks procedural protections and judicial review, the Court in Middendorf v. Henry (1976) ruledthat the process did not violate the Constitution's Due Process Clause sincethe accused had the option of a court-martial trial where representation by counsel would be available. Procedural safeguards enjoyed by American civiliancitizens were largely extended to military personnel by the Court in United States v. Jacoby (1960). The Court held "that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces." The Court in United States v. Davis (1994) further reaffirmed the application of certain constitutional rights to servicemembers. Regarding the Sixth Amendment's right to a speedy trial, servicemembers are actually entitled through militarycode to a speedier trial than that provided by federal or state courts. A 1977 military court ruled that the Sixth Amendment right to a public trial applied to special and general courts-martial, even in cases involving security concerns. An accused can also request a trial rather than be subjected to nonjudicial punishment. The Sixth Amendment right to counsel also applies to military personnel in specific and general courts-martial, but not summary courts-martial. The Fifth Amendment provides safeguards from self-incrimination, connecting oneself with a crime. The Code conforms to this protection and even expands on it. In addition, the Manual requires full Miranda warnings advisingmilitary personnel of their rights at the time of their arrest. The Fourth Amendment's prohibition against unreasonable search and seizure also applies to servicemembers, including application of probable cause standards. The exclusionary rule barring use of illegally obtained evidence also applies to courts-martial. Civilian-like search warrants are obtained through commanding officers. Some types of search and seizure are exempt, including border searchesfor national security purposes, persons reporting to military confinement, and entry or exit from military installations.
The civil rights of servicemembers have limitations as Congress attempted tobalance the demands of military society with constitutional freedoms. Limitations include the right to a grand jury indictment before trial for a capitaloffense in the time of war or public danger, and freedom of speech and assembly. Another difference is that juries are not selected randomly as in civilian judicial system. Jurors are selected by the commanding officer and are normally officers. However, an enlisted defendant can request that one-third of the jurors be enlisted servicemembers, but they are still selected by the commanding officer.
The Universal Military Training and Service Act of 1948 which, in establishing a peacetime draft, exempted persons opposed to any form of war due to religious training or belief, but not for personal moral codes. The Court, later loosening this standard, ruled in Welsh v. United States (1970) that any attempt to distinguish between theistic religious beliefs and non-theisticbeliefs based more on ethics violated the Establishment Clause. Servicemembers could qualify for a discharge from the armed forces under conscientious objector status if they opposed war in any form and the opposition was based ondeeply held beliefs. The 1991 Persian Gulf War led to many conscientious objector applications.
Because of the conscientious objector provisions and reliance on an all-volunteer army, the issue of religious freedom in military did not frequently arise in the latter twentieth century. Military demands outweigh individual religious freedom under certain circumstances such as refusal to obey orders, inoculation against disease, and adherence to uniform standards, the latter decided in Goldman v. Weinberger (1986). Congress passed a law allowing thewearing of religious apparel or other symbols while in uniform if they did not interfere with the performance of military duties and if they were "neat and conservative." In some instances religious freedom protections prevailed.A district court in 1972 ruled that compulsory chapel attendance violated theEstablishment Clause. In Abington School District v. Schempp (1963) the Court ruled that Congress can provide for religious needs in some ways without violating the Establishment Clause, such as by employing a chaplain corps.
Freedom of speech, including symbolic speech, is substantially more limited for military personnel than civilians because they are barred from criticizingthe government, including the president, commanding officers, Congress, andothers, and participation in parades and demonstrations. An example of theserestrictions was provided in 1993 when an Air Force general was reprimanded and forced to retire after making comments about newly elected President BillClinton in 1993. Similarly, political participation is restricted due to thesubordination of the military to civilian control under the Constitution. Themilitary is not to interfere with the functioning of the democratic society.In contrast, servicemembers can be required to participate in parades supporting political views not embraced by the individual military personnel. Military personnel may publish newspapers and other materials while off-duty, butare subject to a censorship process when writing on military matters or foreign policy. In Near v. Minnesota (1931) the Court recognized the seriousness of jeopardizing national security through publication of certain information.
Sex, Gender, and Gay Rights in 1990s
The first official restriction of homosexuality in the military came in the Articles of War of 1916 when homosexual conduct was classified a felony offense. Homosexuality was thereafter considered incompatible with military societyby being detrimental to morale. The military even retained a right to regulate homosexual activity of military personnel when occurring away from military facilities. Homosexual conduct and even knowledge of one's sexual orientation was the basis for criminal charges and discharge. Over 15,000 homosexualswere discharged from the military in the 1980s with a federal court in 1989 holding that constitutional protections were different in the military. However, another federal court later ruled in 1993 that distinctions based on sexual orientation had no rational basis.
The issue of gay rights in the military became hotly contested in 1993 when President Clinton attempted to end discrimination based on sexual orientation.In the face of substantial political opposition, a compromise policy known as "don't ask, don't tell" was enacted in the National Defense Authorization Act of 1994. The policy allowed gays to serve as long as they kept their sexual orientation to themselves and did not engage in homosexual acts. Servicemembers could not be asked about their sexual orientation. Several servicemembers who faced dismissal after publicly claiming their homosexuality filed suitsin 1994 challenging the policy. The bases for challenge were freedom of speech under the First Amendment and equal protection under the Due Process Clause of the Fifth Amendment. In 1998 a federal appeals court ruled that the policy did not violate the constitutional right to due process by subjecting homosexuals to a separate set of regulations from others. The judge indicated hecould not second-guess military decisions bearing on military capability or readiness.
In 1948 Congress institutionalized gender discrimination when it passed the Women's Armed Services Integration Act excluding women from combat roles. Similarly, women were denied entrance to the military academies primarily for thereason that the academies were to produce future combat officers, and womenwere not eligible for combat duty. Gender discrimination was extensive. As anexample, a military policy granted greater benefits to spouses of male servicemembers than spouses of female servicemembers. The Court in Frontiero v.Richardson (1973) ruled that the differential treatment violated equal protection of the law. On the other hand, a federal law granted women naval officers longer periods of commissioned service than men because of the combatexclusion policies. When the law was challenged by male officers on the ground of discrimination, the Court ruled in Schlesinger v. Ballard (1975)that it did not violate equal protection rights under the Constitution. Similarly, the Court in Goldberg v. Rostker (1981) upheld women's ineligibility for draft registration because of the combat exclusion laws. With the end of the military draft in the mid-seventies, women began to be more fully integrated into the all-volunteer military, especially due to the decreasing population of available men at the time. Military "fraternization" policies became more common forbidding "unduly familiar relationships" between officers and enlisted personnel, and officers of different rank.
The military academy restriction ended in 1991 through judicial and Congressional action. Equivalent standards were maintained with minimal physical requirement adjustments at the academies. But even with the fallout of the highlypublicized Tailhook Convention sex scandal in 1991, sexual harassment in theacademies became rampant. Female cadets were persistently accused of loweringacademy standards and causing the end of popular masculine traditions. President Clinton opened combat roles to women in the Air Force in 1993 and the Navy in 1994. Only Army and Marine units engaged in direct ground combat remained closed. Though policies were changing by the late 1990s, acceptance was not. Issues of menstruation, pregnancy, motherhood, and lesser physical strength persisted. Critics claimed that equal opportunity, political correctness and a feminist social agenda were adversely affecting military readiness and social fabric, and, in turn, national security. As the century comes to a close, constitutional questions regarding women in combat continue, but are considered more a political question to be resolved by Congress or the executive branch rather than by the courts.

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