Uniform Code Of Military Justice Research Articles

Trump(ing) Tradition: Old Laws, New Norms, and the Danger to Civil–Military Relations

Before, during, and after his presidency, Donald J. Trump’s behavior and statements provoked segments of the U.S. military and civil society, with some decisions criticized and declared illegal by critics. Some current and former U.S. military personnel openly criticized and displayed contempt toward the president, thereby violating Article 88 of the Uniform Code of Military Justice (UCMJ). Prior to the 2021 conviction of a Marine Corps officer, the last Article 88 conviction occurred in 1966 when an off-duty Army Lieutenant held a sign criticizing President Johnson at an anti-Vietnam War protest. Despite Trump engaging in norm-eroding behaviors that politicized the Armed Forces, these actions were well within his legal rights. However, open criticism against President Trump by many retired flag officers was illegal per UCMJ laws, yet not enforced. The paradox of a UCMJ law becoming dead letter law indicates a major disjuncture between normative civil–military relations and the laws regulating the behavior of active and retired U.S. military officers. We conclude that UCMJ laws must be enforced, rewritten, or abolished because non-enforcement degrades civil–military relations and military professionalism.

Amendments to the Uniform Code of Military Justice Since 1950 (2024 Edition)

Amendments to the Uniform Code of Military Justice Since 1950 (2024 Edition)

The wrong of mercenarism: a promissory account

The wrong of mercenarism: a promissory account

Twice Forgotten: African Americans and the Korean War, an Oral History by David P. Cline

Reviewed by: Twice Forgotten: African Americans and the Korean War, an Oral History by David P. Cline Selika Ducksworth-Lawton Twice Forgotten: African Americans and the Korean War, an Oral History. By David P. Cline. (Chapel Hill: University of North Carolina Press, 2021. Pp. 387. Illustrations, notes, bibliography, index.) Most histories of African Americans in the military focus on World War II or Vietnam. African American soldiers tell their own stories in Twice Forgotten, the first work to highlight such voices in Korean-conflict literature. This book bridges African American experiences between World War II and Vietnam and offers African American men's perceptions of military integration, thereby correcting for this absence in previous literature. Author David P. Cline's purpose is to discuss the Korean War from the standpoint of African American soldiers. The work starts in 1946 with the [End Page 603] beginnings of desegregation, discussing various types of small-unit integration and President Harry F. Truman's 1948 Executive Order 9981, which banned segregation in the military but did not integrate it. Cline's discussion of the complexities of desegregation, removing discrimination, and integration is excellent. The book then moves through 1950 to the July battlefront in Korea and ends with the soldiers' return and how they influenced the civilian world, a period of rapid change. Cline's framework is chronological. He uses oral testimonies that he and his team collected for American RadioWorks, the documentary arm of American Public Media. The wide array of testimonies cover all military branches except the Coast Guard. The testimonies are eloquent, bracketed with explanatory context, and illustrate the pain experienced by African American soldiers who worked against bias while defending the country. Testimonies from Texas soldiers illustrate the state's unique racial landscape, with examples from East Texas revealing harsher examples of harassment and Jim Crow than those from the western part of the state. Cline's writing is nuanced, and throughout the work is readable. Impeccably researched, the book does justice to its subject matter. Nevertheless, readers will not find an evaluation of the courts-martial for misconduct under Article 93 of the Uniform Code of Military Justice (failure to obey orders) wrongfully inflicted on the 24th Infantry Division and 159th Field Artillery Battalion. This book is still invaluable because the voices of the men who were there give readers an authentic sense of battle and being prisoners of war; the latter experience especially is new in the literature. These men fought a dual war against bigotry, both in war and at home. This work documents their experiences in their own words. Selika Ducksworth-Lawton University of Wisconsin—Eau Claire Copyright © 2022 The Texas State Historical Association

Stolen Valor: The Legal Story Behind Impersonating Military Personnel

Military impersonation, or stolen valor, is an understudied topic. Military impersonation can be committed by civilians and service members alike. Military service misrepresentation is adjudicated under civilian federal law (for civilians and veterans) or the Uniform Code of Military Justice (UCMJ; for service members). In the legal field, the main literature concerns the constitutionality of the Stolen Valor Act (SVA) of 2005. However, since the SVA of 2005, many developments have occurred. The same applies to the UCMJ, which underwent a large revision that went into effect in 2019. The scarcity of research has led to this legal study covering the federal statutes and state statutes that apply to military impersonation. Not only are financial motives found, mitigation of sentences in court cases is also a motive. Both demonstrate a need for military history verification.

War Crime Pardons and Presidential (Self-) Restraint

In 2019, then-President Trump pardoned three military officers for battlefield misconduct that could have been charged as war crimes. These were the first such pardons in American history and left many current and former members of the Armed Forces bewildered: these officers had all been charged by their military chains-of-command after sufficient evidence indicated culpability, and in two of the cases, military juries (“panels”) consisting of high-ranking officials with combat experience had convicted the officers and sentenced them to hefty federal prison terms. The granting of clemency under these circumstances has proven fraught with consequences – consequences adversely affecting the relationship between the president as commander-in-chief and the senior military leaders who cautioned against such extrajudicial mercy. Nevertheless, the president’s authority to do so, under Article II of the Constitution, is nearly without limit, and no other statute, case law precedent, or other formal restriction prevents him from doing so. This article approaches the problem from an assumption that neither the Constitution itself will be amended to carve out such crimes from the president’s reach, nor that Congress will amend the Uniform Code of Military Justice or the War Crimes Statute to chip away at this power by enacting administrative conditions on its exercise. Rather, this article suggests that the most likely and practical tool to prevent such pardons in the future is the reasonable, prudential exercise of restraint by the commander-in-chief. Several contingent factors, based on the possible timing of the pardon in relation to where the case is in the military justice process, are identified as a framework for exercising this prudential restraint notwithstanding the Constitutional authority to ignore it.

Military Systems of Justice

Sociologists have largely ignored the study of military tribunals and justice systems. We offer a descriptive overview of military systems of justice intended for use by political and military sociologists, focusing on the case of the United States armed services. We contextualize the principal military systems of justice and provide extended discussions of how the American case connects through formal and informal channels to international legal structures. American military law and justice link three key legal realms: international law on conflict and security at the global level; the so called National Security Constitution at the national level; and the Uniform Code of Military Justice at the institutional level.

(American Military Justice: Retaining the Commander's Authority to Enforce Discipline and Justice)

The authors address pending legislation which would amend the Uniform Code of Military Justice by removing a commander's powers to prefer and refer court-martial charges for serious offenses. The paper offers detailed arguments for rejecting those proposals.

U.S. v. Briggs: Brief of Members of Congress As Amici Curiae in Support of Petitioner

This amicus brief filed in the U.S. Supreme Court case of United States v. Briggs on behalf of a bipartisan group of thirteen members of Congress discusses the absence of any statute of limitation for rape prosecutions within the military. It argues that the Constitution entrusts Congress with authority over military discipline, including the authority to determine what (if any) statutes of limitations apply to crimes that occur within the military. By classifying rape as an “offense punishable by death” and stipulating that “offenses punishable by death” are not subject to statutes of limitations, Congress entrenched the policy that rape within the military is not subject to any statute of limitations at all. Whether the death penalty can be constitutionally imposed for the rape of an adult—an open question in the specialized military context—is wholly irrelevant to the key question in the case: Whether Congress determined that the death penalty is warranted for rape in the military. Congress’ policy judgment—that rape within the military is so heinous and so damaging to military effectiveness that no temporal restriction should be placed on its prosecution—is entitled to respect. Rape in the military has devastating effects on survivors individually and military readiness generally. And the military’s hierarchical command structure can exacerbate the understandable reluctance of rape survivors to come forward and report the crimes committed against them. In light of those considerations, the provisions in the Uniform Code of Military Justice that address rape in the military have been understood for decades to reflect Congress’ intent that those who commit the crime of rape should not be permitted to escape justice by hiding behind the passage of time.

Restoring the Power of the Convening Authority to Adjust Sentences

In 2013, Congress abrogated the power of certain military officers to reduce court-martial sentences, thereby eliminating a military defendant’s best hope for efficient and effective relief from common legal errors in the military justice system. While the overhaul of the Uniform Code of Military Justice (UCMJ) in 2016 promised significant reform, it ultimately failed to substantially reduce common legal errors. This Note analyzes how the 2013 and 2016 reforms have combined to prevent military defendants from receiving timely and adequate relief. In light of this analysis, this Note suggests an amendment to the UCMJ that would restore to certain officers a limited authority to reduce sentences based on legal errors. Such a reform ultimately addresses the core concerns that led to the 2013 revision while simultaneously providing an efficient and effective remedy for common legal errors, furthering the UCMJ’s aim of promoting justice and maintaining good order and discipline.

Criminal Responsibility of Personnel of Private Military and Security Companies Under the Uniform Code of Military Justice

Criminal Responsibility of Personnel of Private Military and Security Companies Under the Uniform Code of Military Justice

So You're Telling Me There's A Chance: Why Congress Should Seize the Opportunity to Amend Article 37 (UCI) of the UCMJ

This article will examine in depth the decisions in United States v. Barry and United States v. Boyce to illustrate why Congress should amend Article 37 of the Uniform Code of Military Justice (UCMJ) . First, the article will profile the court’s decision in Barry and the case law contradictions it has created regarding intent in actual UCI claims. Next, the article will discuss the mantle of command authority and how this significant precept had been a major factor in UCI claims prior to the Barry decision. The article will then explore how Boyce generated even more confusion, this time regarding the requirement to show prejudice to the accused in apparent UCI claims. The article concludes with proposed revisions to Article 37 that specifically address these concerns and it proposes two statutory inclusions that would permit superior convening authorities to mentor subordinate convening authorities and if necessary, withhold the authority to dispose of certain offenses in individual cases without committing UCI. In sum, Congress should seize the opportunity to clarify what constitutes UCI and subdue a lot of the turmoil CAAF has created since it decided Boyce nearly a year and a half ago.

The Effect of Supreme Court Death Penalty Jurisprudence on the Military Statute of Limitations for Rape

In 2018, the Court of Appeals for the Armed Forces (CAAF) broke from civilian precedent in a case involving death penalty procedure. The underlying issue in the military case United States v. Mangahas was whether abolition of the death penalty also invalidated the statutorily prescribed capital procedures — in particular, the capital exemption from the statute of limitations. Mangahas held that a charge for which the Uniform Code of Military Justice (UCMJ) statutorily provides the possibility of capital punishment nevertheless does not trigger the capital exemption from the statute of limitations if the death penalty could not constitutionally be imposed. Specifically, the CAAF held that the un-aggravated rape of an adult was subject to the general military five-year statute of limitations, despite statutory language deeming all rape to be “punishable by death” and thus subject to the capital exemption from the statute of limitations. Note that this holding applies only to rape committed prior to 2007, after which amendments to the UCMJ explicitly provide that all rape is exempt from the statute of limitations. As such, Mangahas insulates all yet unreported pre-2007 rape, since the general five-year statute of limitations has now long since tolled. This Comment argues that the Mangahas decision was incorrect both as a matter of statutory interpretation, as evidenced by unanimous federal civilian case law, and as a prudential matter. The capital exemption from the statute of limitations should attach to all pre-2007 rape despite abolition of the death penalty. Part I of this Comment describes the development of the statute of limitations for rape in the UCMJ and introduces intervening Supreme Court death penalty jurisprudence. Part II explains how Mangahas contravenes the interpretations of every federal civilian Court of Appeals to have addressed the same issue, and outlines the important military values that Mangahas jeopardizes. Finally, Part III describes how either the CAAF itself or the Supreme Court can mend this conflict.

Modern Military Justice: Cases and Materials: Chapter One

This textbook is about the modern military justice system of the United States. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. The Third Edition includes several recent cases and updates that address the significant changes made in the 2019 Manual for Courts-Martial, the Military Justice Act of 2016, and other recent legislation.

This We’ll Defend: Expanding UCMJ Article 2 Subject Matter Jurisdiction as a Response to Nonconsensual Distribution of Illicit Photographs

In March 2017, it was revealed that current and former armed service members shared thousands of nude photos of their female counterparts over social media. Although some of these photos were taken with the women’s consent, almost none of them were distributed with the women’s consent. Victims have little legal recourse. Military law is silent on the matter of non-consensual distribution. Federal civilian law speaks only to interstate stalking, domestic violence, and harassment, while only thirty-four states have revenge porn laws that sufficiently criminalize nonconsensual distribution of illicit photographs. Further complicating matters, the perpetrator’s military status as active duty, reservist, or National Guardsman at the time of the crime determines which remaining punitive remedies are available to the victim, if any. Under the current legal framework, two recent developments in U.S. military policy risk opening female service members to additional exposure. First, in 2015, the Department of Defense opened all combat roles to women. Second, and concurrently, the Department began downscaling the military to a smaller, more flexible force increasingly supplemented by its reserve and National Guard (non-active-duty) forces. In light of these developments, the current state of the law poses an unacceptable risk that the growing number of female service members will be subjected to the dual horrors of seeing lewd photos of themselves plastered across the internet, and of seeing the perpetrator walk freely. This Note argues for expanding Article 2 subject matter jurisdiction of the Uniform Code of Military Justice to include all currently contracted members of the U.S. military—active duty, reservist, and guard—in order to bring peace of mind to those female service members willing to fight for peace abroad.

The historical roots and future directions for military law and policies on rape and sexual assault

ABSTRACTThe time in which rape has been a crime tried in the military criminal justice system is remarkably short. For much of the nation’s history, military members accused of common law crimes were tried in civilian courts established under Article III of the Constitution. The exception was during periods when the nation was at war. A continuous jurisprudence of military rape law did not begin until the late 1980s. Since that time, an avalanche of sexual assault scandals, legislation, task forces, and commissions have driven the issue to the forefront of public interest. While change was glacially slow for decades, the last 10 years have brought about some of the most dramatic changes in military justice since the Uniform Code of Military Justice (UCMJ) was established in 1950—changes driven almost entirely by the sexual assault debate. Congressionally chartered advisory committees like the Defense Task Force on Sexual Assault in the Armed Forces, the Response Systems to Adult Sexual Assault Crimes Panel, and the Judicial Proceedings Since Fiscal Year 2012 Amendments Panel have recommended many of the reforms to law and policy now in place regarding the military’s response to sexual assault allegations. Nonetheless, several key reforms are still waiting, including improved collection of sexual assault data and program performance metrics and a more precise definition in Department of Defense policy of what conduct constitutes sexual assault.

Why a President Cannot Authorize the Military to Violate (Most of) the Law of War

Waterboarding and “much worse,” torture, and “tak[ing] out” the family members of terrorists: President Trump endorsed these measures while campaigning for office. After his inauguration, Trump confirmed his view of the effectiveness of torture and has not rejected other measures forbidden by international law. This article therefore examines whether a president has the power to order or authorize the military to violate international humanitarian law, known as the “law of war.” Rather than assess whether international or federal law generally constrains a president as commander-in-chief, however, its focus is the extent to which Congress requires the U.S. military to comply with the law of war in its disciplinary code, the Uniform Code of Military Justice (UCMJ). It clarifies the extent to which Article 18 of the UCMJ, which vests general courts-martial with jurisdiction over offenders and offenses triable by military tribunal and to impose punishments “permitted” by the law of war, requires law of war compliance. It explains how Article 18 empowers courts-martial to try and punish not only war crimes defined by international law but also other law of war violations that entail a criminal offense under the UCMJ. Put differently, the article clarifies why reasonable compliance with the law of war is necessary to justify common war measures that are otherwise crimes punishable under the UCMJ, such as murder, maiming, assault, and arson. The article then explains why this domestic execution of the law of war limits a president’s authority as Commander-in-Chief: a president does not possess constitutional power to override congressional regulation of the military. So long as Article 18 remains unchanged, no president may order or authorize war crimes or other law of war violations that entail a crime under the UCMJ.

From Healthcare to Warfare and Reverse: How Should We Regulate Dual-Use Neurotechnology?

Recent advances in military-funded neurotechnology and novel opportunities for misusing neurodevices show that the problem of dual use is inherent to neuroscience. This paper discusses how the neuroscience community should respond to these dilemmas and delineates a neuroscience-specific biosecurity framework. This neurosecurity framework involves calibrated regulation, (neuro)ethical guidelines, and awareness-raising activities within the scientific community.

Judicial Proceedings Panel Report on Statistical Data Regarding Military Adjudication of Sexual Assault Offense for Fiscal Year 2015

This report on military sexual assault adjudication data for fiscal year 2015 builds upon the JPP’s previous analysis and report, issued in April 2016, of cases tried in fiscal years 2012 through 2014. The JPP makes three recommendations addressing best practices for the collection of adjudication data for sexual assault cases; the implementation of the new Article 140a, Uniform Code of Military Justice; and the need to continue analyzing sexual assault court-martial data after the JPP concludes in September 2017.

Judicial Proceedings Panel Report on Victims' Appellate Rights

This report summarizes the JPP’s review of the rights of victims of sexual assault in the military appellate process. Included in the report are four recommendations addressing appellate counsel access to certain sealed materials, victim notice of appellate proceedings, victim standing in post-conviction appellate proceedings, and victim access to the Court of Appeals for the Armed Forces under Article 6b of the Uniform Code of Military Justice.