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MILITARY LAW -- A SHORT HISTORY Dr. Clifton Bryant, "Khaki-Collar Crime," 1979, The Free Press All military entities have attempted to enforce discipline and compliance with orders with regulated sets of norms and a system of sanctionative military justice. The Greeks and Romans had detailed systems of military justice, and the Romans even had the equivalent of modern-day military police, which they called camp police, to enforce order and military regulations. Errant Roman legionnaires might well be fined, subjected to extra duty, or even flogged for infractions of the rules or dereliction of duty. Later in the Middle Ages, the Crusaders apparently had a relatively formalized military code. Various European nations, over time, developed formal codes of military justice derived from the authority of the king as chief executive and commander-in-chief of the armed services. On June 30, 1775, the U.S. Continental Congress adopted a set of Articles of War derived from several sources, including portions of the code of Gustavus Adolphus of 1621, the British military code, and the Massachusetts articles of war. This set of articles was the first national code of military justice. General Washington encountered little more than a "disorganized and undisciplined mob" when he assumed command of the Continental Army on July 3, 1775. He subsequently moved to implement the new Articles of War and vigorously effected military justice. There were various revisions of the Articles of War in subsequent years. Many of the revisions had to do with the relative authority of the military commander, the Congress, and the president in regard to the power to convene courts-martial, and the process of appellate review. During the period of time when the army was known as the Legion of the United States, military justice was "harsh and severe" but it was also very uneven, arbitrary, and inconsistent. Severe punishment for violation of military regulations continued to be the prevalent posture of military justice during the War of 1812. By the time of the Civil War, the new military situation necessitated additional revisions, and resulted in the Articles of War of 1874. A major change was the new provision that "the commander was empowered at time of war to executive certain death sentences upon confirmation of the department commander or the commanding general in the field." The Articles of War underwent further extensive revision in 1916. The revisions primarily addressed judicial procedures and the authority of certain commanders to courts-martial. In 1920 the Articles of War were again revised. In this revision the major thrust was to dilute the commander's authority, in effect requiring him "to share his decision-making authority with noncommanders, to forward the file of an accused to the staff judge advocate prior to trial, and to consult with his staff judge advocate for an opinion concerning the legality of the proceedings before taking any posttrial action." The commander was also further constrained in his judicial prerogatives in other ways. After the end of World War II, in 1948, the U.S. Articles of War were again significantly revised. Among the changes with significant import were the creation of a separate Judge Advocate General's Corps that could "insure independent legal action and advice." For the first time, enlisted men were empowered to sit as members of a court-martial if requested by the accused. Perhaps most important, individuals who sit as members of a court-martial were enjoined to "use their independent judgment free of commander influence and without fear of censure in later court-martials." In 1950 the extant system of military codes in this country was thoroughly overhauled and the new U.S. Uniform Code of Military Justice appeared. According to Knudten, this code incorporated elements of the earlier Army and Navy codes portion of the United States code. It articulated a wide range of military offenses encompassing our categories of crimes against property, crimes against person, and crimes against performance. It also specified the appropriate procedures for alleging military violations and the subsequent charges and specifications. It additionally restricted the type of sentence that could be given, but did not restrict the type of offense that could be tried. Knudten goes on to describe three classes of courts-martial that were provided: 1. Summary Court-Martial. This type of trial is conducted by a single officer and makes no provision for a defense counsel or prosecutor (in recent years counsel has been permitted). This court is intended for enlisted men and is not empowered to try officers. The punishments that may be levied are limited to one month's confinement, limited reduction in grade, and forfeiture of two-thirds of a month's pay. Knudten has equated it to a civilian police court. 2. Special Court-Martial. This type of trial is convened for more serious offenses, but generally must be convened by a person with the authority to convene a general court-martial (there are exceptions to this rule). A special court-martial shall consist of any number of members not fewer than three, and a military judge who is not a member of the court (in special instances the court-martial could consist of a military judge alone). Such a trial also permits a trial counsel and a defense counsel (defense counsel must be a lawyer if trial counsel is a lawyer), plus appropriate assistants, as well as a court reporter. Special courts-martial may try persons subject to the code for any noncapital offense made punishable by the code (and again in some special circumstances may be referred to a special court-martial for trial). The special court-martial may prescribe or adjudge "any punishment not forbidden by the code except death, dishonorable discharge, dismissal, confinement for more than six months, hard labor without confinement for more than three months, forfeiture of pay exceeding two-thirds pay per month, or forfeiture of pay for more than six months. 3. General Court-Martial. [This type of trial] is convened for the most serious offenses and is empowered to prescribe the most serious punishments. A general court-martial shall consist of any number of members not fewer than five and a military judge (in special instances, a general court-martial shall consist of a military judge alone). Such a trial also permits a trial counsel and a defense counsel, both of whom must be lawyers, plus appropriate assistants, as well as a court reporter. General courts-martial may try persons subject to the code "for any offense made punishable by the code." They can also try persons for offenses and crimes against the law of war, and for crimes or offenses "against the law of the territory occupied as an incident of war or belligerency whenever the local civil authority is superseded in whole or in part by the military authority of the occupying power." The general court-martial can adjudge any punishment not forbidden by the code (within certain limitations). In the instances of minor offenses against the Code of Military Justice, or other relatively inconsequential violations of military rule or norm, the local commander (generally a company commander in the army or ship captain in the navy, for example) may, at his or her peroragative, administer nonjudicial punishment instead of referring the offender to court-martial. Nonjudicial punishments, which are imposed under Article 15 of the Uniform Code of Military Justice, may assume one of the nine basic forms as articulated by Knudten for trial: (1) admonition and reprimand (2) restriction (3) extra duties (4) reduction in rank (5) forfeiture of pay (6) arrest in quarters (7) correctional custody (8) confinement on bread and water or diminished rations (9) detention of pay. The offender does not normally have to accept punishment under Article 15, but may instead request trial by court-martial. In additional to nonjudicial punishment and the various levels of court-martial, there are several levels of administrative review, including boards of review maintained by each military service, which serve as an "intermediate appellate tribunal to review matters of fact and of law, and to affirm only that part of the approved sentence which seems appropriate." Beyond that, the U.S. armed services also have a supreme court of the military in the form of the Court of Military Appeals, which is composed entirely of civilian judges of whom "no more than two may be of the same political party," and who "must be appointed from the membership of the Bar of the federal court or the highest state court." |