Military Law in a Nutshell
Authors:
Shanor, Charles A. / Hogue, L. Lynn
Edition:
4th
Copyright Date:
2013
15 chapters
have results for military law
Chapter 3. The Military Criminal Justice System 54 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 It also includes published decisions by the military appellate courts in West’s Military Justice Reporter and unpublished decisions as well, and numerous secondary sources of...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 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.”
- 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.
- 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)
- Any person can report a military offense. The report is to be forwarded to an accused’s immediate commander as soon as practicable. RCM 301. An accused may be subjected to three types of pre-trial restrictions that are unique to military law. In increasing order of severity, they are arrest (sometimes called restriction), apprehension, and confinement.
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Preface 6 results (showing 5 best matches)
- 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.
- 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.
- 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.
- 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
- Professor of Law and Co-Director, Volunteer Clinic for Veterans
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Chapter 1. A Brief History of American Military Law 48 results (showing 5 best matches)
- 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.
- Military law serves two broad purposes. One is to enhance command and control to make a band of fighters into a more effective force; the other is to reduce the exposure of civilian noncombatants to the harsh consequences of war. This chapter reviews the historical development of military law.
- Two nineteenth-century U.S. Supreme Court cases well illustrate the tension between treating military law as an aspect of command or subjecting the military justice system to the rule of law.
- Military law, particularly the international laws governing the conduct of warfare, has been heavily influenced by and is deeply indebted to the military code promulgated April 24, 1863, as General Order No. 100 “Instructions for the Government of Armies of the United States in the Field.” These instructions, appropriately known as the “Lieber Code” because of Francis Lieber’s role in their preparation, were unlike a traditional military order in that they were informational rather than directory in nature. The Lieber Code, appropriately called the “earliest official government codification of the laws of war,” provided a documentary foundation for further development of the law of war and identified military necessity as a general legal principle to limit violence.
- 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 7. Military Law Crimes, Defenses, and Punishments 44 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.
- Articles 77–134, UCMJ, 10 U.S.C. §§ 877–934, known as the Punitive Articles, contain the substantive offenses for which one subject to the UCMJ may be held accountable. These crimes may be classified in many ways. For convenience, this chapter divides crimes into “Specified Offenses” and “Unspecified Offenses.” The former category encompasses both common law crimes and offenses peculiar to the military. Common law crimes will be treated only briefly, for they do not differ significantly from the civilian crimes treated in numerous criminal law texts. The peculiarly military crimes discussed are “Absence Offenses,” “Duties and Orders Offenses,” “Superior–Inferior Relationship Offenses,” and “Combat–Related Offenses.” The “Unspecified Offenses” discussed are violations of the “General Articles.” Finally, selected defenses will be surveyed and a brief overview of military law punishments will be presented.
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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...
- , 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...
- Three aspects of the Bill of Rights that deserve careful study in connection with the military criminal law system are search and seizure, self-incrimination, and the right to counsel.
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Chapter 5. Review of Courts-Martial 23 results (showing 5 best matches)
- 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
- 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.
- 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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Chapter 8. Rights of Servicemembers 112 results (showing 5 best matches)
- [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
- 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.
- With respect to members of the armed services, early cases painted a starker picture: “To those in the military or naval service of the United States, the military law is due process.” held that the power to prescribe rules for those in the armed services “is given without any connection between it and the 3d Article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other.” A member of the armed services is “subject to military law and the principles of that law; as provided by Congress, [constitute] for him due process of law in a constitutional sense.”
- illustrates that, although military law may have defined the extent of due process afforded the service member, whatever principles of law Congress specified must be scrupulously adhered to.
- , 453 U.S. 57 (1981), the Court refused to particularize the degree of deference due to a law passed by Congress dealing with military affairs and national security, but clearly accorded such laws substantial deference:
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Chapter 4. Courts-Martial 100 results (showing 5 best matches)
- 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.
- 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.
- The general court-martial is the highest and most powerful trial court in the military criminal law system. It has the power to try any person subject to the UCMJ for any offense punishable by the UCMJ and may impose punishments which include the death penalty, dishonorable discharge, total forfeiture of all pay and allowances, confinement, and, of course, lesser punishments. RCM 201(f)(1). Additionally, when local civil authority is displaced by military occupation, general courts-martial may try persons subject to trial by military tribunal under the law of war. See Ex parte Milligan, 71 U.S.
- Exception 3: Private contractors “serving with” or accompanying an armed force during a declared war or contingency operation are subject to courts-martial. UCMJ, Article 2(a)(10), 10 U.S.C. § 802(a)(10). The jurisdiction of the military to try civilians has waxed and waned. Prior to the founding of this country, the British Articles of War of 1765 provided for jurisdiction over “[a]ll Suttlers and Retainers to a Camp, and all persons whatsoever serving with Our Armies in the Field.” British Articles of War of 1765, section XIV, art. XXIII,
- At the close of argument, the presiding officer instructs the members of the court on the applicable law. Article 51(c), UCMJ, 10 U.S.C. § 851(c). The members then meet alone to determine the guilt or innocence of the accused. A substantial body of law has given necessary detail to the bare requirement of Article 51(c) that the presiding officer instruct court members concerning their general responsibilities and the elements of the offense. For example, the military judge should define any terms with special meanings, tailor all instructions to the facts, and give such other explanations, descriptions or directions as may be necessary and which are requested by a party or which the military judge decides should be given. RCM 920(e). The military judge may summarize and comment on the evidence as long as it is an accurate, fair, and dispassionate statement of what the evidence shows.
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Chapter 2. Enlistment, Discharge, and Separation 46 results (showing 5 best matches)
- Subject to the review of the Secretary, the DRB can change a discharge or dismissal to a higher one or issue a new discharge. The review is based on the servicemember’s military record and any other relevant evidence presented by the petitioner. The petitioner may appear in person, with or without counsel, and offer testimony. Generally, the petitioner must establish that the discharge was improperly or inequitably issued under the standards of law and discipline of the military department, or that new standards have been promulgated which are retroactive in application.
- Historically, under military regulations homosexuality was considered to be “incompatible with military service.” Thus, in , 881 F.2d 454 (7th Cir. 1989), which challenged that policy, the court deferred to the Army’s conclusion that the presence of gay, lesbian, or bisexual servicemembers would be detrimental to the morale of the armed forces. In 1993, when President Clinton announced his intention to eliminate the military’s ban on service by gays and lesbians, Congress forced a compromise that became known as “don’t ask, don’t tell,” which meant that the military should not inquire about a ...incorporated in a federal statute, 10 U.S.C. § 654, that authorized the services to deny enlistment or dismiss servicemembers who engaged in or attempted to engage in homosexual acts or who stated that they were homosexual or bisexual. However, the law did not affect those who kept silent or who, having stated that they were homosexual or bisexual, did not engage in or have a propensity...
- (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.
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Outline 18 results (showing 5 best matches)
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- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- This publication was created to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- 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.