Military Law in a Nutshell
Authors:
Shanor, Charles A. / Hogue, L. Lynn
Edition:
4th
Copyright Date:
2013
13 chapters
have results for military
Chapter 3. The Military Criminal Justice System 52 results (showing 5 best matches)
- Another resource cited frequently in this Nutshell is Army Regulation 27–10, Military Justice (AR 27–10) available online through the Army Publishing Directorate website at www.apd.army.mil/pdffiles/r27_10.pdf. Military law incorporates regulations of the individual services, and all services publish regulations. These primary sources of law govern the disposition of cases arising in the military. Numerous resources on military law and military justice are available on Westlaw. These include publications of the Department of Defense, the Department of the Army, the Joint Chiefs of Staff, the Air Force, Navy and Marine Corps, the Military Judges’ Benchbook, the Manual for Courts-Martial including subparts such as the Military Rules of Evidence, Rules for Courts-Martial, and the Uniform Code of Military Justice. It also includes published decisions by the military appellate courts in West’s Military Justice Reporter and unpublished decisions as well, and numerous secondary sources of...
- In many respects, this system parallels state and federal civilian systems for dealing with crimes. Like state and federal law, military law is hierarchical, both substantively and procedurally. Substantively, the United States Constitution is at the apex of the military law system, followed by federal statutory law, regulations promulgated by the President, the secretaries of defense and of the various armed services, and rules of various commanders. Court decisions interpret these laws. Procedurally, the military court system is organized much like civilian courts: trials are conducted by courts-martial with review by two tiers of appellate courts, the first comprised of appellate military judges, the second comprised of civilian appellate judges. Judgments of the highest military court are reviewable by the Supreme Court.
- In other particulars however, military law and its processes diverge from civilian criminal law. As the Supreme Court noted in , 417 U.S. 733 (1974), “Just as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.”
- , 895 F.2d 873 (D.C.Cir. 1979) explored the many bases for perceptions of unfairness in the military justice system but ultimately concluding “that the system of military justice, as presently constructed, is the sole means capable of satisfying the unique needs of the armed services” and further finding it to be “constitutionally permissible.” Robert E. Curry, a soldier, was convicted by court-martial of two homicides and sentenced to hard labor, reduction to the lowest enlisted grade and a dishonorable discharge. Having exhausted his routes of review in the military appellate courts and separately in the Board for Correction of Military Records, Curry collaterally attacked his conviction on constitutional grounds alleging denial of his Fifth Amendment right to due process. Curry’s due process challenges were based primarily on the role of the commander in the military justice system in general, and on his trial in particular. The commander plays a central role in the military...
- There are two basic sources of this specialized jurisprudence: the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial (MCM). Congress originally enacted the UCMJ in 1950, extensively revised it in 1968, and has continued to update specific provisions over the years. The MCM, promulgated by executive order of the President, is revised frequently. These basic resources for the study of Military Law and Military Justice are available online in full text PDF versions through the Library of Congress Federal Research Division (FRD) website www.loc.gov/rr/frd/Military_Law. This includes the Manual for Courts-Martial (MCM) available at www.loc.gov/rr/frd/Military_Law/pdf/MCM–2012.pdf (and also at http://armypubs.army.mil/epubs/pdf/mcm.pdf)
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Chapter 4. Courts-Martial 94 results (showing 5 best matches)
- Few categorization problems have arisen with respect to persons currently serving full-time active military duty. Moreover, while at their service academies cadets and midshipmen are subject to the jurisdiction of military tribunals. The problems of application focus on (1) entry into the military, (2) persons performing part-time military service, and (3) exit from the military.
- General courts-martial consist of a military judge and no fewer than five members, unless the accused requests trial by military judge alone. RCM 501(a)(1)(A). In death penalty cases, however, a military judge may not sit alone. Procedures for general courts-martial parallel those for special courts-martial. The only notable differences are that in general courts-martial (1) appointed trial lawyers are always certified military lawyers and (2) military judges are always detailed. RCM 1103(b)(2)(B). Procedures for both special and general courts-martial are examined later in more detail.
- , 71 U.S. 2 (1866), a civilian was tried and convicted by a military commission for conspiracy, insurrection, and other crimes relating to an alleged plan to organize a secret military force in Indiana to aid the Confederacy during the Civil War. On petition for habeas corpus, the Supreme Court held that the military commission was without jurisdiction, stating: “This court has judicial knowledge that in Indiana the Federal authority was always unopposed, and its courts always open … and no usage of war could sanction a military trial there for any offense whatever of a citizen in civil life, in nowise connected with the military services.” The important factors which led the Court to provide the full Constitutional safeguards of civilian courts were that Milligan: (1) was a citizen of a Union state not under military siege; (2) could have been tried, convicted, and punished in civilian court for these ...connected with the military services. These rationales are the core of four...
- Third, if military status terminates but there is “immediate” re-enlistment, the short gap between periods of military status does not sever military ties and jurisdiction remains over offenses committed on a previous tour of duty.
- The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or any enemy combatant who without uniform comes secretly through the lines for the purposes of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not be entitled to the status of prisoners or war, but to be offenders against the law of war subject to trial and punishment by military tribunals.
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Chapter 6. Military Criminal Justice System Constitutional Safeguards 21 results (showing 5 best matches)
- MRE 315(d) allows the issuance of an “authorization to search” by an impartial commander or other officer in a position of command or by a military judge or magistrate. The search authorization, which must be based upon probable cause, grants permission to search a person or area for specified property or evidence or for a specific person. MRE 315(b), (f). A search authorization may be issued for a search of persons subject to military law, military property, persons and property within military control, and non-military property in a foreign country. MRE 315(c).
- The warrant must be issued by a neutral and detached official acting in a judicial or quasi-judicial capacity. See United States v. Sloan, 30 M.J. 741 (A.F.C.M.R.1990) (neutrality and detachment of a commander). The warrant must be based upon probable cause and be limited at least as to the place to be searched and the things to be seized. However, military officials generally do not obtain civilian search warrants because military law also recognizes as reasonable a search conducted pursuant to a military commander’s properly granted authority.
- Military law distinguishes between “inspections” and “searches.” Under MRE 313, inspections are lawful only if (1) they are not conducted primarily to obtain evidence to use in a court-martial or disciplinary proceeding and (2) they are ordered and conducted primarily to ensure the security, fitness, or good order and discipline of the military unit. In , 2 M.J. 31 (C.M.A. 1976), the court said that the “traditional military inspection which looks at the overall fitness of a unit to perform its military mission is a permissible deviation from what may be tolerated in civilian society generally.” However, “shakedown inspections” instituted “in search specifically of criminal goods or evidence is not such a permissible intrusion into a person’s reasonable expectation of privacy, even in the military setting.” Thus, the commander who tailors a barracks or field area inspection for legitimate military reasons can search entire group without probable cause. But, a commander who expressly...
- These broad exceptions to civilian “lawful search” principles are based on the fact that military missions and expectations of military personnel may make otherwise unjustified searches reasonable. This explanation is buttressed by the limitation of these searches to military property and persons. “An otherwise impartial authorizing official does not lose that character” merely because that official is present at a search or available to those seeking the issuance of an authorization or because the official previously authorized investigative activities. MRE 315(d)(2).
- , 346 U.S. 137, 142 (“The military courts, like the state courts, have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights.”) (plurality opinion). The only explicit textual difference between civilian and military criminal defendants’ rights in the Bill of Rights is the Fifth Amendment’s exception of the requirement for grand jury indictment “in cases arising in the land or naval forces or in the Militia when in actual service in time of War or public danger….” U.S. Const., Amend. V. Yet the scope of constitutional protections for servicemembers has never been fully defined by the Supreme Court. However, military appellate courts have held that servicemembers enjoy extensive Bill of Rights protections: “It is now settled that the protections of … the entire Bill of Rights, are applicable to the men and women serving in the military services of the United States unless expressly or by necessary implication they are made...
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Chapter 1. A Brief History of American Military Law 42 results (showing 5 best matches)
- The size of the military shrank significantly in the period between the two world wars and little attention was paid to military justice, but World War II brought with it a significant expansion in manpower and strains on the military justice
- As will be seen, earlier history was marked by an emphasis on discipline that was short on substantive and procedural fairness. As a phrase associated with Dr. Martin Luther King has it, however, “The arc of the moral universe is long but it bends toward justice.” In more recent times that arc has bent toward justice for members of the military service. Safeguards of due process and fair treatment have entered military law supported by Congress and the courts. Gradually, a system largely relying on commanders who were professionals at arms, but who were legal amateurs, has been augmented by a corps of trained lawyers in all branches of military service whose task is to support the military’s mission in a way that comports with the values of a democratic society guided by a written constitution. The nature of the commander’s role in military justice continues to undergo examination prompted by significant changes in the military itself, notably, the end of racial discrimination in...
- Thus, English military law increasingly came to reflect democratic values by incorporating a fresh mix of citizen soldiers imbued with civilian values, and also by taking steps to insure that military commanders were ultimately accountable to civilian authority. Eventually military discipline was regularized and conformed to models of fairness and procedure imported from the sphere of civilian law. When America stood on the brink of revolution, it would adopt a well-developed system of military law from the British.
- Strangely, little changed in military justice between the Revolutionary War and World War I; those who faced the Kaiser did so under a military justice system that had governed those who fought the Hessians. Military justice was immune to the improvements, both substantive and procedural, in the civilian justice system which could have served as models. Problems persisted because during wartime, the country was too preoccupied to address deficiencies in military justice, and during peacetime there was no felt need.
- Thereafter, Vallandigham sought review by the Supreme Court, which held that it lacked the power to review the proceedings of military commission by certiorari. Justice Wayne’s opinion assessing the authority to conduct trials by military commission notes that Burnside acted “in conformity with the instructions for the government of the armies of the United States, approved by the President … [which] were prepared by Francis Leiber [sic].” For the military, Lieber’s Code may have been informational rather than directory, but for the Court, it was law-binding and prescriptive. Time would secure within the military and the law of war the beachhead Lieber’s Code gained early on in the Supreme Court. Even the unfortunate effect on judicial review of military commissions was temporary, for the Court soon allowed habeas review of a military commission conviction in
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Chapter 5. Review of Courts-Martial 19 results (showing 5 best matches)
- Finally, considerations of comity will preclude civilian courts from granting injunctive relief for an accused while a court-martial or the military appellate processes are in progress. The comity doctrine of Court noted that this deficiency was supplied by equally compelling factors: the separateness of military and civilian societies and the mission of the military to fight or be ready to fight wars. Congress, noted the Court, attempted to balance military necessities and demands for fairness by placing a court comprised of civilian judges with lengthy tenure at the apex of the military court hierarchy.
- Both civilian and military appellate review processes are designed to correct errors in individual cases and establish a body of law for application to subsequent cases. However, the military review system is more protective of the rights of convicted persons than state or federal review systems because several military reviews are automatic. Moreover, some military reviews correct factual errors and exercise clemency as well as reviewing questions of law and “clearly erroneous” factual findings. Appointment of new counsel at government expense to handle appeals also encourages a thorough and detached review of the court–martial trial process. Finally, defense counsel is mandatory when requested by the accused, when the United States is represented by counsel, or when the Judge Advocate General (TJAG) has sent the case to the C.A.A.F.
- Because a court-martial is not an Art. III court, critics have continued to question the judicial independence of military judges, e.g., Major Fansu Ku, “From Law Member to Military Judge: The Continuing Evolution of an Independent Trial Judiciary in the Twenty-First Century,” 199 49 (2009) and Frederic Lederer & Barbara S., “An Independent Military Judiciary—A Proposal to Amend the UCMJ,” 3
- , a plurality of the Court found it appropriate to review whether the military courts had “dealt fully and fairly with an allegation raised” in the habeas corpus petition. It was inappropriate, said the plurality, for civilian courts to reexamine and weigh the evidence in a court-martial. In dicta, the Court noted that “in military habeas corpus the inquiry … has always been more narrow than in civil cases” and that “this court has played no role in [military law’s] development; we have exerted no supervisory power over the courts which enforce it.” In , various concurring or dissenting members of the Court argued (1) that the federal courts have only the more limited function of seeing whether the military court had jurisdiction, (2) that the case should be reargued; and (3) that federal courts
- Second, what is the scope of civilian court review over military court decisions? As one court noted: “The Supreme Court has never clarified the [Burns] standard of full and fair consideration, and it has meant many things to many courts.” , 415 F.2d 991 (D.C.Cir.1969). Some civilian courts have been satisfied to review only whether the military courts considered the petitioner’s allegations, while others have stressed the “fullness” and “fairness” of the military court deliberations over the allegations. To date, this divergence of opinion has not been resolved by the Supreme Court.
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Preface 4 results
- This fourth edition of MILITARY LAW IN A NUTSHELL returns the book to its original roots in military justice. Continued development of military law led us to separate it from the national security and counterterrorism law framework included in our NATIONAL SECURITY AND MILITARY LAW IN A NUTSHELL (2003). A myriad of new developments in the national security and counterterrorism field will be treated in a separate Nutshell scheduled for publication next year.
- We have tried to make this volume a concise, accurate, and authoritative source of information about military law and justice for those seeking to understand the workings of the military’s distinctive legal system. In that sense, the NUTSHELL attempts to integrate the jurisprudence of the military, “a society apart from civilian society,” into an analytical framework comprehensible to civilians and useful to those with an intimate knowledge of the armed services. Many of the cases, a number of specific topics, and much of the organization of this book are new. The primary sources of this NUTSHELL include the Constitution, treaties, federal statutes, executive orders, military regulations, and the decisions of courts adjudicating military criminal law matters.
- The primary audience for this volume is the law student taking a specialized course on military law and justice. We have tried to provide a straightforward presentation of the law that will complement recent casebooks on military law and justice such as Gregory E. Maggs and Lisa M. Schenck, MODERN MILITARY JUSTICE: CASES AND MATERIALS (West 2012) and Eugene R. Fidell, Elizabeth L. Hillman, and Dwight H. Sullivan, MILITARY JUSTICE: CASES AND MATERIALS (LexisNexis, 2d ed. 2012), both of which reflect renewed vitality in this field in legal education. Special thanks to Professor Maggs and Dean Schenck for permission to reproduce two charts on the military court system.
- Additional users of this volume will be practicing lawyers seeking a succinct overview of military law, cadets at military academies and in college R.O.T.C. programs, and lawyers preparing to enter the Army, Navy, Air Force, or Coast Guard Judge Advocate General’s Corps. News media reporters and now bloggers should also find the volume a valuable source of background and context. Finally, this volume will also prove useful to enlisted personnel
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Chapter 7. Military Law Crimes, Defenses, and Punishments 41 results (showing 5 best matches)
- Many offenses specified in the UCMJ are strictly military in nature. Other offenses, denounced by military law rather severely because of the nature of military duty and martial responsibilities, would be minor offenses under civilian law. These offenses can be organized into the following four categories:
- Much of the majority opinion rested on differences between military and civilian law and the need for immediate obedience and discipline in the military: “Just as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.” Additionally, the opinion cited several factors narrowing the broad language of the general articles. Furthermore, the court concluded that numerous examples in the MCM have imparted “accepted meaning to the seemingly imprecise standards of Articles 133 and 134” and that: [e]ach of these articles has been construed by the [C.M.A.] or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope….”
- The so-called “common law crimes” in the military are in fact codified in great detail. However, the military does not draw the felony/misdemeanor line often drawn under state law. Rather, punishments
- Not surprisingly, this divergence between civilian law and the general articles has spawned constitutional challenges to their validity. Until 1974, most commentators argued that the general articles were constitutionally defective because of vagueness, overbreadth, potential for abuse of prosecutorial discretion, and lack of delineation of punishment. Those who disagreed, including various military courts, relied primarily on court decisions construing the articles, statutory language limiting the possibilities for abuse, a long military custom and history behind the articles, special constitutional standards applicable to military law, and restraint by the military in use of the articles.
- (4) The “good soldier” defense is the final peculiarly military defense. The “good soldier” defense allows an accused to offer evidence of his or her general good military character and lawful disposition in order to raise a reasonable doubt as to guilt. Evidence of such a pertinent trait of accused’s character is admissible under MRE 404(a)(1). In , 16 M.J. 44 (C.M.A. 1983), the Court of Military Appeals held that it was prejudicial for the trial judge to refuse admission of evidence of accused’s good military character and character from lawfulness. As Chief Judge Everett noted in his concurring opinion, “As we noted in ...goes so far as to say that evidence of good soldierly character is even stronger than the customary evidence of good general character.” It should be noted that the “good soldier” defense is not without critics, e.g., Elizabeth Lutes Hillman, Note, “The ‘Good soldier’ Defense: Character Evidence and Military Rank at Courts-Martial,” 108 Yale L.J. 87 (1999) (...
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Chapter 8. Rights of Servicemembers 93 results (showing 5 best matches)
- “[O]ur evolving jurisprudence has created a zone of protection for military actors, immunizing actions and decisions which involved military authority from scrutiny by civilian courts. It is our conclusion, however, that this zone was never intended to protect the personal acts of an individual when those acts in no way implicate the function or authority of the military.
- [417 U.S. 733 (1974)] reiterated the point that differences between the military community and the civilian community result in military law that “regulate[s] aspects of the conduct of members of the military which in the civilian sphere are left unregulated.” [citation omitted] But the Supreme Court upheld Article 134, UCMJ, against constitutional attack for vagueness and overbreadth the narrowing construction developed in military law through the precedents of this Court and limitations within the
- This libertarian, privacy culture, is in many respects at odds with military culture. The Supreme Court has cautioned that, “The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside of it.” , 417 U.S. 733 (1974). Lower courts, both civilian and military, have echoed similar views. , 518 F.2d 466 (D.C. Cir. 1975) (“The soldier cannot reasonably expect the Army barracks to be a sanctuary like his civilian home.”). Military culture subordinates the interests of the individual soldier, sailor, marine or airman to those of the mission and the units that will carry it out. Base and installation commanders permissibly promulgate numerous regulations that foster such values as orderliness, civility, and uniformity with the objective of fostering the overall fitness of a unit to perform its military mission that in turn result in a communal...
- In the event a default judgment is entered against a servicemember protected the SCRA, the law provides for reopening it. 50 App. U.S.C. § 521(g). To be eligible for opening under the SCRA, the default judgment must have been entered during the servicemember’s period of military service (or within 60 days after termination of or release from such military service). The court that entered the default judgment shall, upon application by or on behalf of the servicemember, reopen the judgment for the purpose of allowing the servicemember to defend the action if it appears that the servicemember was materially affected by reason of that military service in making a defense to the action; and the servicemember has a meritorious or legal defense to the action or some part of it. An application to reopen under this provision of the SCRA must be filed not later than 90 days after the date of the termination of or release from military service.
- Interest on an obligation or liability incurred by a servicemember, or the servicemember and the servicemember’s spouse jointly, before the servicemember entered military service cannot bear interest at a rate in excess of 6 percent (Six Percent Rule). Interest is limited during the period of military service and one year thereafter, in the case of an obligation or liability consisting of a mortgage, trust deed, or other security in the nature of a mortgage or during the period of military service, in the case of any other obligation or liability. Interest in excess of 6 percent is forgiven, and the SCRA proscribes acceleration of the principal. 50 App. U.S.C. § 527. Because this protection under the SCRA applies only to interest obligations incurred prior to enlistment or activation to federal service, servicemembers and their spouses may wish to open new credit accounts after military service begins in order to segregate those accounts that are entitled to special treatment under...
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Chapter 2. Enlistment, Discharge, and Separation 40 results (showing 5 best matches)
- (3) Subject to the military justice system, which means, among other things, that I may be tried by military courts-martial.
- Whenever a servicemember’s record reflects acceptable military service and performance of duty, an honorable discharge is issued. An honorable discharge signifies adequate military performance. It is not a mark of distinction or meritorious service, which are generally recognized through medals and awards. An honorable discharge entitles the recipient to both tangible and intangible benefits such as veteran’s benefits and favorable consideration by civilian employers.
- Like an enlisted member of the armed services, a commissioned officer has no constitutional right to remain in the service and may be separated from the military through one of several methods. Some merely terminate the officer’s status in a particular military component, while others sever all connection with the military. Administrative separations of officers are much less common than enlisted separations. Ordinarily, if an officer’s misconduct is serious enough to warrant an administrative discharge, it will be grave enough to warrant court-martial.
- An accused must first exhaust all military appeals before seeking relief in federal court. , 327 F.3d 1296 (11th Cir. 2003) (“[A] military service member must exhaust all intra-military remedies before applying for a writ of habeas corpus seeking discharge from the military under the terms of his or her enlistment contract, unless the application falls within a limited number of exceptions to the exhaustion principle.”)
- Consistent with the general policy of non-interference by the judiciary in military affairs, the scope of judicial review of military discharges is limited. The grounds of review are generally confined to determining: (1) whether the Secretary acted within his or her authority; (2) whether the military adhered to its statutes and regulations; (3) whether procedural due process was afforded; (4) whether the grounds for the discharge are constitutional; (5) whether there has been an administrative review; and (6) whether the review decision was arbitrary, capricious or unsupported by substantial evidence.
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Index 14 results (showing 5 best matches)
- Publication Date: September 27th, 2013
- ISBN: 9780314907189
- Subject: Military Law
- Series: Nutshells
- Type: Overviews
-
Description:
The fourth edition of Military Law in a Nutshell by Charles A. Shanor and L. Lynn Hogue has been thoroughly revised and updated. It is designed to make available to law students and military lawyers a succinct summary of military law and military justice. It has been adapted to serve as a companion to current casebooks in the field, as well as to provide an authoritative resource for those seeking an introduction to the unique aspects of military law and military justice.
The new edition takes account of changes in the Uniform Code of Military Justice (UCMJ), such as, Article 2(a)(10), extending court-martial jurisdiction over civilian contractors, and cases marking its application, e.g., United States v. Ali, 71 M.J. 256 (C.A.A.F. 2012), evolving issues regarding public access to court-martial proceedings, e.g., Center for Constitutional Rights v. United States, ___M.J.___, 2013 WL 1663084 (C.A.A.F. 2013) and the impact of the Military Extraterritorial Jurisdiction Act and its amendments.
As in earlier editions, the Nutshell traces the history and development of military law, its sources, the nature of military status, rights of members of the Armed Forces, and provides an exhaustive yet accessible review of the military justice process.