Uniform Code Of Military Justice Research Articles

Parsing the Commander in Chief Power: Three Distinctions

The panel was convened at 2:45 p.m., Friday, March 31, by its chair, Curtis Bradley of Duke University of Law, who introduced the panelists: David Golove of the New York University School of Law; John Harrison of the University of Virginia School of Law; Thomas Hemingway of the Office of Military Commissions; and Deborah Pearlstein of Human Rights First. * PARSING THE COMMANDER IN CHIEF POWER: THREE DISTINCTIONS As Justice Jackson noted in the Youngstown steel seizure case, the Commander in Chief Clause has given rise to some of the most persistent controversies in our constitutional history. (1) That clause is being invoked by the executive branch in connection with a number of contemporary controversies, including the military detention of suspected terrorists, the use of military commissions to try terrorists, and the National Security Agency's post-September 11th program of warrantless surveillance. In considering the powers of the commander in chief in these contexts, it is useful to keep in mind several distinctions: between the President's statutory and constitutional authority; between the President's inherent and exclusive constitutional authority; and between international law as an external limitation and international law as an internal limitation on the President. First is the distinction between the President's statutory authority and his constitutional authority. When Congress has granted the President the authority to carry out a war-related activity, courts are likely to defer to the combined judgment of the political branches, and will typically avoid reaching the question of whether the President would have had the authority to carry out the action in the absence of congressional authorization. In these situations, presidential action will fall within the highest category of the framework suggested by Justice Jackson in Youngstown for evaluating claims of presidential authority and therefore will be supported by the strongest of presumptions and the widest latitude of judicial interpretation. (2) In Hamdi v. Rumsfeld, for example, the Supreme Court concluded that President Bush had the authority under the Authorization for the Use of Military Force (AUMF), which Congress enacted shortly after the September 11 attacks, to detain a U.S. citizen who had been captured during the fighting in Afghanistan, and the Court declined to reach the question of whether the president would have had this authority in the absence of the AUMF. (3) Similarly, in Ex parte Quirin, the Court concluded that President Roosevelt had the authority under Article 15 of the Articles of War (now Section 821 of the Uniform Code of Military Justice) to try a group of German saboteurs (including one who may have been a U.S. citizen) by military commission, without reaching the question of whether this action fell within the President's constitutional authority. (4) A second distinction that can be drawn is between the President's inherent constitutional authority and his exclusive constitutional authority. The inherent constitutional authority of the President simply refers to authority that the President has independent of any grant of authority by Congress. Because the Constitution gives war-related powers both to the President and to Congress, the inherent powers of the President in this area are likely to overlap with the powers of Congress. That is, the powers of the two branches on some issues will be concurrent. …

When a Rose is Not a Rose: Military Commissions v. Courts-Martial

The Military Commissions Act developed a judicial system based upon that of General Courts-Martial under the Uniform Code of Military Justice. The military commissions will use many of the same personnel and share some procedures with general courts-martial, but certain aspects show them to be very dissimilar. Specifically: the revised evidentiary rules on coerced statements, hearsay and classified evidence; the lack of speedy trial rights; the absence of a formal pre-trial investigation; and the failure to apply case law precedent. These differences will have significant secondary effects on the process that are not favourable to a defendant. As a result of both the primary and secondary effects of the differences, the commissions will provide significantly less due process to unlawful combatants than the general court-martial process will provide to their lawful combatant counterparts.

:Military Justice in America: The U.S. Court of Appeals for the Armed Forces, 1775–1980.(Modern War Studies.)

Jonathan Lurie has prepared the seminal history of the development of the United States Court of Military Appeals for the Armed Forces. Pursuant to its constitutional power to “make Rules for the Government and Regulation of the land and naval forces,” Congress created the Court in 1951 as a component of the consolidated Uniform Code of Military Justice (commonly referred to as the UCMJ). The intent was to create a civilian appellate mechanism to provide oversight and create harmony in the interpretation of military law across all of the branches of the armed forces. The court also serves as a counterbalance to the potential for the erosion of justice within the military as a result of command pressures. The creation of the Court of Appeals for the Armed Forces is the definitive indicator of Congressional desire (on behalf of the American people) to implement core values against the backdrop of civilian standards by molding the practices of American military judges and lawyers around the world rather than allowing an unchecked evolution of practice from the British Articles of War. The establishment of the court culminated the extension of judicial authority over the eclipsing power of unchecked command discretion.

The U.S. Approach to Combating Trafficking in Women: Prosecuting Military Customers. Could it Be Exported?

On 15 September 2004, the Joint Service Committee on Military Justice of the Office of the U.S. Secretary of Defense announced that it was considering changes to the Manual for Courts Martial. The proposed changes involved crimes that could be charged under Article 134 of the Uniform Code of Military Justice. Two of the offenses—“Patronizing a Prostitute” and “Pandering by Compelling, Inducing, Enticing, or Procuring [an] Act of Prostitution”—were described by a senior Department of Defense official as intended to address misconduct associated with human trafficking. Pandering, an offense calling for up to five years’ imprisonment and a dishonorable discharge from the military, and prostitution, which can be punished by a dishonorable discharge and confinement for one year, were already listed as offenses; the proposed changes to the manual were technical. However, criminalizing the patronage of a prostitute is a novel and politically attractive approach to the problem. It is novel because those countries that forbid prostitution typically focus their enforcement efforts on suppliers rather than customers. Nor does any other country, to my knowledge, extend the reach of its military justice system so that, for example, a soldier who seeks sex from a prostitute in a country where prostitution is permitted would still be subject to criminal prosecution. It is politically attractive for several reasons. First, it evidences governmental willingness to undertake new initiatives to cope with this enormous international threat to the rule of law. Second, imposing sanctions on military customers, rather than all customers, can be justified in disciplinary terms and as an aspect of enlightened foreign policy. Finally, it is attractive because soldiers, sailors, and airmen have less domestic political influence than affluent tourists who

Measuring Up: Comparing Self-Reports With Unit Records for Assessing Soldier Performance

Objective indicators are considered to be the most reliable and inherently valid indicators of performance, but such data can be difficult and expensive to collect. It is also not certain whether objective data archived in organizational records are the “gold standard” metric they are often touted to be. This study compared self-report data obtained from active duty soldiers (N = 433) to their data maintained in organizational records. Performance measures included (a) demonstration of effort (i.e., number of military awards), (b) physical health and fitness (i.e., army physical fitness test score, number of sick call visits, duty restriction for health reasons), (c) soldiering proficiency (i.e., individual weapon qualification score), and (d) personal discipline (i.e., violation of the Uniform Code of Military Justice, cases of indebtedness, and substance abuse counseling referral). Slight to moderate concordance was found between all self-report and unit records of soldier performance. When there was a misclassification, the majority of soldier self-reports demonstrated positive bias for measures that were directly job related in the Army (e.g., M16 rifle qualification performance and physical fitness). However, there were also cases of negative bias for other aspects of performance (e.g., sick call, indebtedness, substance abuse referral). In general, results from previous research linking positive self-presentation with positive affect and job attitudes were not replicated. The role of errors in both archival records and self-reported data are discussed, along with implications for developing a gold standard method of collecting performance data.

Mediums and Messages: An Argument Against Biotechnical Enhancements of Soldiers in the Armies of Liberal Democracies

Assuming that one believes that individuals and states can morally defend values, beliefs, and institutions with force (in short, that just wars are morally possible), one logically wants just combatants to possess the physical, mental, and spiritual capacities that will enable them to win the war. On the other hand, being a just combatant in a just war does not morally entitle that combatant to do anything to win that war. The moral requirement for just combatants to fight justly is codified in international law of war and in state-specific legal documents such as the United States Uniform Code of Military Justice. While it is almost unequivocally clear to soldiers and civilians who soldiers cannot harm in the performance of their duties, and why these people are exempt from harm, it is less clear what the state itself (assuming throughout the discussion that the state is a just combatant in a just war) can morally do to its own soldiers to enhance their chances of victory: can the state do anything to soldiers to give them an advantage on the field of battle? For United States soldiers and their counterparts in most Western liberal democracies, the answer is obviously no. Deeply embedded social and cultural norms in Western democracies mandate that the state set and enforce rigid lines which drill sergeants and earnest commanders cannot cross, even in the name of combat readiness, grounding these norms in notion of basic rights appealed to in the U.S. Constitution. In this essay, I argue against some types of drug-induced internal biotechnical enhancement of soldiers on the grounds that, in the present state of technology, it is not reasonable to suppose that the military can perform such enhancement operations on soldiers without causing irrevocable psychological damage that would certainly and unjustifiably alienate the soldiers from the very society they serve.

Kangaroo Court or Competent Tribunal?: Judging the 21st Century Military Commission

President Bush's military commission order, based upon FDR's guidance for the 1942 trial of Nazi saboteurs, authorized procedures departing substantially from court-martial practice. This paper demonstrates the military commission, whose actual origin is traced to the Mexican War in 1847, differed from the statutory court-martial primarily in jurisdiction, not procedure. It argues that Article 36 of the Uniform Code of Military Justice should be read, particularly in light of developments in contemporary international law and the Charming Betsy canon, to require continued commonality between the two tribunals. This argument was substantially adopted by the district court in Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 166 n12, 169 n15, 170 n16 (D.D.C. 2004).

Evolving Military Justice (review)

This book is both an appropriate celebration of the fiftieth anniversary of the passage of the Uniform Code of Military Justice in 1952 and a useful update on the state of military law today. It is an anthology of articles, some previously published, some written for this book. [End Page 999]

Terrorism on Trial: The President's Constitutional Authority to Order the Prosecution of Suspected Terrorists by Military Commission

On November 13, 2001, President George W. Bush, in his capacity as commander in chief, promulgated a Military Order authorizing the trial of noncitizens suspected of complicity in the brutal attacks on September 11, 2001, before specially convened military commissions. The Military Order of November 13 establishes that, unlike trials in federal district courts, judicial review of the commission proceedings will be strictly prohibited.2 The commissions also differ considerably from the courts-martial provided under the Uniform Code of Military Justice (UCMJ).3 Courts-martial are appealable on all issues of fact

Weak Legs: Misbehavior before the Enemy

STATUTES MAKE FOR APPALLINGLY TEDIOUS reading unless primitively short and to the point as, for example, this provision in the early Kentish laws of IEthelberht (c. 600): He who smashes a chin bone [of another] shall pay 20 shillings or this one from King AElfred (c. 890): If anyone utters a public slander, and it is proved against him, he shall make no lighter amends than the carving out of his tongue.1 Yet on very rare occasion a modern statute can rivet our attention and when it does it seems to do so by mimicking some of the look and feel of legislation enacted in less lawyer-ridden times. Consider the statute presently set forth in the United States Code as part of the Uniform Code of Military Justice:

The Effects of Race on Procedural Justice: The Case of the Uniform Code of Military Justice

Building on a relatively recent tradition in studies of the civilian criminal justice system, the present research examined the potential racial bias in time-related variables inherent in the administration of courts-martial under the Uniform Code of Military Justice (UCMJ). The sample consisted of a database of all adjudicated charges in the U.S. Army of aggravated assault, drug-related, and sex-related crimes between 1986 and 1992. The results of the analyses of two main and three explanatory hypotheses indicated that, with regard to non-sex-related offenses, blacks spent longer going from initial charges to final disposition, were older than whites, and had been in the service longer. The relationship was reversed for sex-related crimes. The presence or absence of a negotiated plea bargain was found to have negligible effects on duration in the system. No consistent correlation was found between intellectual ability and time spent in the system. These results were interpreted in terms of an interaction between the level of potential public interest in a crime and the race of the accused, with blacks receiving accelerated treatment in crimes involving sex and less attention in the case of other crimes.

Son Thang: an American war crime

Three months after Army lieutenant William Calley was charged with the infamous massacre of civilians at My Lai, the Marine Corps had to deal with a savage war crime of its own. Although the incident received little of the media attention focused on Calley's crimes, the murder of sixteen women and children by five Marines at Son Thang-4 raised serious questions for the Corps and the Uniform Code of Military Justice. Gary Solis, a Marine combat officer in Vietnam and later a judge advocate, draws on his considerable experience to describe the horrifying crime, its problematic investigation, and the complex courts-martial. It is an engrossing true courtroom drama, complete with unpredictable outcomes and the involvement of both Oliver North and James Webb. Were the five Marines of the self-styled killer team sent to Son Thang-4 on 19 February 1970 carrying out orders to punish the hamlet or reacting to snipers when they opened fire on noncombatant civilians at point-blank range? Were their actions simply a consequence of weeks of unrelenting combat in which fellow Marines were killed by the invisible Viet Cong and their boobytraps? Using trial records and extensive interviews, Solis brings to life the host of military and civilian attorneys, judges, and juries who wrestled with these and other thorny questions in the midst of a combat zone. His riveting courtroom narrative is every bit as fast-paced and readable as the best legal fiction, and his authoritative assessments of the principals' performances, explanations of the peculiarities of military justice, and analysis of issues that rocked the very foundation of the military code of justice assure the book's long-lasting value. Herefor the first time is the full story of what happened at Son Thang-4, including the controversial deliberations and verdicts - a study as pertinent today as it was in 1 Corps, Vietnam, more than twenty-five years ago.

Crime in the U.S. Coast guard, 1964–1990

This work describes the use of criminal prosecutions in the U.S. Coast Guard from 1964 to 1990. Using both the works of Lennon (1988) and Bryant (1979), this research shows a joint model for defining military deviance, one legal in construction (specific, special, and general), the other occurrence‐based (crimes against the person, property, or performance). The findings show that three types of military crime constructed by this joint model predominate in the Coast Guard throughout the study period, Specific/ Property (e.g., larceny), Special/Performance (e.g., AWOL) and General/Performance (e.g., breaking restriction). The findings also suggest the political nature of criminal prosecutions in the U.S. Coast Guard over the period of study through the exaggerated use of crimes against performance and, more specifically, the use of the general article (Article 134) of the Uniform Code of Military Justice.

The Case for Mandatory HIV Testing of Active Duty Sex Offenders

As of May 1993, at least 23 states had passed laws permitting, or requiring, human immunodeficiency virus testing of sexual offenders. Several others have recently passed, or are considering, such legislation. At present, no such specific requirement exists under the Uniform Code of Military Justice. This paper presents an overview of the competing Fourth Amendment privacy rights of accused/convicted offenders, victims' rights, the usefulness and validity of such testing, and the public health mission of the military medical services. In addition, potential tort liability of the armed services is discussed. The author presents arguments supporting mandatory testing of accused offenders meeting minimal "probable cause" requirements, and sharing test results with the physician of complainants/ victims.

Cold War Casualty: The Court-Martial of Major General Robert W. Grow.

Research data gathered through the Freedom of Information Act and the use of the Grow files provide the framework for this account of the general court-martial of one of General George S. Patton's famous armoured division commanders of World War II. The 1952 court-martial of Major General Robert W. Grow, senior US military attache in Moscow during the Korean War era, involved a general officer who had used questionable judgement in securing a personal diary that contained impolitic statements, portions of which had been photocopied by an alleged Soviet agent in Frankfurt, West Germany. This era of Cold War tensions and McCarthyism, Western media sensationalism, and communist propaganda created a cause celebre and influenced the Army Staff in the Pentagon, led by Lieutenant General Maxwell D. Taylor, to exercise controversial command influence under the aegis of the new Uniform Code of Military Justice. While the State Department and Central Intelligence Agency recommended refuting the implications of the published diary, the Army Staff decided to prosecute the unfortunate attache. Grow, a career soldier, welcomed a formal hearing in order to clear his name. The result became an exercise in Army politics and an example of the corruption of the military justice system through managerial careerism and unlawful command influence. Through his analysis of the Grow incident, Hofmann traces the actual operation of military judicial process under the Uniform Code and examines the bureaucratic intrigues, influence of the media, Cold War propaganda, and resulting conflict between service and self-interest.

Sticks, stones and broken bones: Military law’s criteria for aggravated assault

In light of recent military court decisions, this article asks whether the Uniform Code of Military Justice should be revised to encompass batteries which do not satisfy the present nineteenth century definition of grievous bodily harm. In answering this question, the article first traces the evolution of the military law of battery. Current medical views on the consequences of a criminal attack, particularly the psychic effects of violence, are then explored, concluded with a discussion of the competing considerations which should affect any decision to change the law.

Practicing clinical psychology under the Uniform Code of Military Justice.

Practicing clinical psychology under the Uniform Code of Military Justice.

Practicing clinical psychology under the Uniform Code of Military Justice.

Practicing clinical psychology under the Uniform Code of Military Justice.

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

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

Structures of American Military Justice

In a course of decisions stretching back 100 years, the United States Supreme Court has struggled to formulate an analysis of the military justice system.1 While taking into account the needs of the military, such an analysis would have to be, in addition, both explicable and acceptable to the civilian population and legal tradition. Although it had decided individual cases, until the 1974 case of Parker v. Levy2 the Court was not forced to articulate a complete analysis of why the military justice system should be treated differently from a civilian system. Prior cases provided hints, but their facts allowed the Court to limit its decisions and appear to be merely fine tuning a system that differed from our civilian system only in certain narrow aspects required by the nature of any military operation. Levy will not bear such an easy and accommodating construction. The Supreme Court there upheld the two so-called general articles of the Uniform Code of Military Justice (UCMJ).3 These provisions have no American civilian counterpart and on their face appear to outlaw anything and everything that a commanding officer dislikes. The Levy majority tried to explain the validity of such rules in the military context, but failed to articulate its view of the social structure underlying the military justice system and of the Constitution's place in it. Any justification of the result in Levy, however, requires a radically