military law

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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 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, 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.


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.

West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.

military law

n. regulations governing the conduct of men and women in the armed services in relation to their military (not civilian) activities. (See: judge advocate)

Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved.

military law

the law that regulates the conduct of members of the armed forces; its essential concern is the maintenance of discipline.
Collins Dictionary of Law © W.J. Stewart, 2006
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