Military Justice

Abstract

The U.S. military justice system predates the formation of the nation and has been revised in the aftermath of every major military conflict in American history to reform weaknesses exposed by the stresses of these conflicts and in response to the demands of the American people. Why does the U.S. military have its own legal system, codified in the Uniform Code of Military Justice (UCMJ), and how does it differ from civilian law? This chapter addresses those questions, illuminating the ways that the UCMJ focuses on the attainment of justice as the necessary predicate to the maintenance of good order and discipline necessary both to fight and win the nation’s wars and to ensure that every service member is provided the Constitution’s foundational promise, due process of law and protection of fundamental rights. This core function, the attainment of justice, is necessary to sustain an all-volunteer military in a democratic society. Intended to operate worldwide as an expeditionary justice system in austere and combat environments, the military justice system has depended on the joint action of military commanders and their supporting lawyers to provide justice since its inception, often including rights more expansive than those in the civilian justice system. Recent pressures for reform have resulted in changes to the military justice system to move it closer to procedures found in the civilian legal system, focusing on controversial initiatives to remove the commander from the central role in the administration of military justice, as this chapter details. The chapter also covers procedural aspects of the UCMJ, highlighting where those diverge from the civilian system, and highlights challenges arising from the trials of unconventional enemies in military commissions undertaken under the Military Commissions Act.