Court-Martial Jurisdiction: An Expansion of the Least Possible Power

Abstract

The historical limitation on the jurisdiction of courts-martial, which is solely criminal in nature,2 has been based in large part upon concern for overreach of military control, fear of unnecessary deprivation of constitutional protections for service members, and a general lack of confidence in military justice. The national desire for a fit and disciplined armed force has provided a counterweight to these concerns. The delicate balance between the desire for limited jurisdiction and the need for an effective national defense is first set by Congress. With a constitutional mandate to govern the armed forces,3 Congress has established the general boundaries of court-martial jurisdiction in the Uniform Code of Military Justice.4 In turn, the civilian and military courts have further refined and defined the scope of military jurisdiction. Combined, the legislative and judicial modifications keep the boundaries, and the balance, in a constant state of flux. This perpetual shifting--at most times almost imperceptible-is not without debate. On the one hand the proponents of restriction argue that unchecked expansion of court-martial jurisdiction potentially robs service members of constitutional protections such as indictment by grand jury and trial by