Military Justice without Military Control

Abstract

* Professor of Law, Indiana University School of Law, Bloomington, Indiana. A.B. 1959, Georgetown University; M.A. 1962, 1967, University of Texas; J.D. 1962, Harvard University. 1. For example, there were 1.7 million American courts-martial during World War II with procedures which lacked such basic due process rights as legally-trained counsel and judges, freedom from command influence, and appeal to a judicial tribunal. Sherman, The Civilianization of Military Law, 22 MAINE L. REV. 3, 3-28 (1970). 'When the war ended there was such a public outcry that eighty-five percent of the sentences of the 27,500 servicemen still imprisoned were remitted or reduced. Farmer & Wels, Command Control-Or Military Justice?, 24 N.Y.U. L.Q. 263, 265 (1949). 2. For an account of Nazi court-martial abuses, see R. GRUMBERGER, THE TWELVEYEAR REICH: A SOCIAL HISTORY OF NAZI GERMANY, 1933-1945, at 161 (1971). 3. See INTERNATIONAL SOCIETY OF MILITARY LAW AND THE LAWS OF WAR, THE SAFEGUARD OF INDIVIDUAL RIGHTS IN THE APPLICATION OF MILITARY LAW AND DISCIPLINARY REGULATIONS (LES GARANTIES DES DROITS INDIVIDUELS DANS LA REPRESSION DISCIPLINAIRE ET PENALE MILITAIRE) 10, 46 (1966) [hereinafter cited as INTERNATIONAL SOCIETY OF MILITARY LAW, THE SAFEGUARD OF INDIVIDUAL RIGHTS]. 4. In addition to the nations discussed in this article, France, Belgium, the Netherlands, Luxembourg, Switzerland, Italy, Norway, and Canada all adopted reforms which resulted in fairer courts-martial with expanded civilian court jurisdiction and review powers. INTERNATIONAL SOCIETY OF MILITARY LAW, THE SAFEGUARD OF INDIVIDUAL RIGHTS, supra note 3, at 5-158. 5. 10 U.S.C. ?? 801-940 (1970). The UCMJ was amended by the Military Justice Act of 1968, Pub. L. No. 90-632 (Oct. 24, 1968). 6. There are three levels of court-martial: general, special, and summary. A general court-martial may only be convened by high-level commanders. Art. 22, Uniform Code of Military Justice [hereinafter cited as UCMJ], 10 U.S.C. ? 822. It may prescribe'any punishment allowed for the offense by the Table of Maximum Punishments promulgated by the President and contained in the MANUAL FOR COURTS-MARTIAL UNITED STATES (rev. ed. 1969) [hereinafter cited as MCM 1969]. Art. 18, UCMJ. A special court-martial may be convened by intermediate-level commanders, art. 23, UCMJ, and its maximum sentence is six months' confinement at hard labor, six months' forfeiture of 2/3 pay, demotion, and a bad conduct discharge. Art. 19, UCMJ. A summary court-martial may be convened by lower-level commanders, art. 24, UCMJ, and its maximum punishment