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THE PLACE OF LAW IN AMERICAN MILITARY SOCIETY

Article I, Section 8, of the Constitution provides that Congress shall have the power to "make rules for the government and regulation of land and naval forces." In enacting laws to govern military society, the Congress must balance the rights of the persons in military service against the considerations and needs of military society. The societal considerations of the military are somewhat different from those of the civilian community. The difference is due to the unique purpose of the military force which is to protect society from external threats and domestic violence.

A higher degree of discipline and sacrifice is required of military personnel and this carries with it some loss of individual freedom. In determining the constitutionality of statutes governing military society, the judiciary traditionally has considered the uniqueness of military society to be a compelling reason for permitting a greater sacrifice of the rights of military personnel. Mr. Justice Vinson in Burns v. Wilson, 346 US 137 (1954), underscored the importance of the stricter standard applicable to military personnel when he said that "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty."

While a serviceman's right to individual freedoms may be more limited in certain areas than those of civilians, it should not be assumed that servicemen give up their constitutional rights upon entering military service. Blackstone noted long ago that armies were composed of average citizens and not professional fighters:

No man should take up arms, but with a view to defend his country and its laws; he puts not off the citizen, when he enters the camp.*

Similarly, American courts have recognized that citizens do not lose their constitutional rights by entering the military. Judge Ferguson of the United States Court of Military Appeals acknowledged this fact in United States v. Tempia, 16 U.S.C.M.A. 629, 633, 37 C.M.R. 249, 253 (1967), when he stated:

The time is long since past . . . when this Court will lend an attentive ear to the argument that members of the armed forces are, by reason of their status, ipso facto deprived of all protections of the Bill of Rights.

As "citizen-soldiers," American servicemen are protected by the Bill of Rights. The specific freedoms they enjoyed as civilians are modified only to the degree made necessary by their status as soldiers.

As he signed the Military Justice Act of 1968 President Lyndon B. Johnson emphasized the importance of protecting servicemen's free

*Blackstone's Commentaries on the Law 173 (Gavit ed. 1941)

doms when he said, "The man who dons the uniform of his country today does not discard his right to fair treatment under the law.” Years later in a commencement address at the Air Force Academy, President Richard M. Nixon also underscored the need for ensuring that all military service personnel are accorded constitutional protections. Specifically he stated:

I believe that every man in uniform is a citizen first and a serviceman second, and that we must resist any attempt to isolate or separate the defenders from the defended.

Today's soldier serving in the armed forces of the United States enjoys many of the constitutional rights he had as a civilian. Only in a limited number of situations are his constitutional protections modified to accommodate the demands of duty and discipline.

TODAY'S MILITARY JUDICIAL SYSTEM

Sources of Military Law

There are three systems of criminal law in the United States: the state system, the federal system, and the military system. The military law system exists separate and distinct from the systems of state law and federal law. As the Supreme Court noted in Burns v. Wilson, 346 U.S. 137, 140 (1954):

Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.

Like federal and state systems, the military system has built up a large body of law based on constitutional provisions, statutes, administrative regulations, executive orders, and court decisions. These are the sources of military law and the foundation of the military justice system. The Constitution

The initial source of military law is the United States Constitution. As noted previously, Article I, Section 8, provides that Congress should have the power to "make rules for the government of land and naval forces." Congress relied upon Article I, Section 8, when it enacted the Uniform Code of Military Justice in 1951 and it is this section of the Constitution which has made possible the creation of the system of military criminal statutes which exists along side those of state and federal governments. In addition, many provisions of the Constitution, particularly those set forth in the Bill of Rights, apply to persons serving in the armed forces as well as to those subject to federal and state laws.

The Uniform Code of Military Justice

The Uniform Code of Military Justice (UCMJ) was enacted in 1951 and is perhaps the most important source of military law. The UCMJ is a body of law setting forth a system of justice for the military. It

provides a system of criminal law geared to the needs of the armed services in much the same way the different states have enacted separate systems of criminal law to meet their particular needs. The UCMJ is a federal law which defines what types of conduct are crimes in the military. The UCMJ also describes the military court system and sets forth the basic procedures to be followed in administering military justice. The two important goals achieved by the UCMJ are uniformity of law for all services and statutory protection of the rights of those accused of criminal misconduct.

The Manual for Courts-Martial

The Manual for Courts-Martial supplements and explains various provisions of the UCMJ. The Manual is designed to offer guidance in all areas of Military Justice and it is meant to be used by all members of the military services. In addition, it prescribes the procedures to be followed before military tribunals and establishes the limits of punishments for offenses. The Manual for Courts-Martial is published by Executive Order of the President, and has the force and effect of law. The current Manual was promulgated in 1969.

Army Regulations

Army Regulations (AR's) issued by the Secretary of the Army are another source of military law. Section 3012 of Title 10, United States Code, gives the Secretary of the Army the authority to issue such regulations.

(b) The Secretary is responsible for and has the authority necessary to conduct all affairs of the Department of the Army, including

(1) functions necessary or appropriate for the training, operations, administration, logistical support and maintenance, welfare, preparedness, and effectiveness of the Army,

...

(g) The Secretary may prescribe regulations to carry out his functions, powers, and duties under this title. [Italics added.]

In accordance with this authorization, the Secretary of the Army has issued regulations providing guidance in the administration of military justice. These regulations too have the force and effect of law. See United States v. Eleason, 41 U.S. 291 (1842). The primary regulation governing the administration of military justice and setting forth rules and procedures is Army Regulation 27-10 entitled "Military Justice." Local commands also may have regulations supplementing those prescribed by the Secretary.

Court Decisions

The appellate courts in the military justice system are the Courts of Military Review and the United States Court of Military Appeals. The Courts of Military Review are intermediate appellate courts of review consisting of military appellate judges. Each branch of the armed forces has its own Court of Military Review. The United States Court of Military Appeals is the highest appellate court in the military justice

system. It is composed of three civilian judges appointed by the President and it is the final arbiter of all other appeals in the military system. In United States v. Armbruster, 11 U.S.C.M.A. 596, 598, 19 C.M.R. 412, 414 (1960) the Court of Military Appeals summarized its role within the framework of the military system as follows:

This Court was created by Congress to sit in review of courts-martial in matters of law. . . . In essence, it is the Supreme Court of the military justice system. Our decisions are binding upon the military. And, subject only to review by the Supreme Court of the United States on constitutional issues, our decisions are also binding “upon all departments, courts, agencies, and officers of the United States."

Decisions of the United States Court of Military Appeals and the Courts of Military Review have the force of law and are binding on a commander.

Procedural Safeguards for Servicemen

The rights guaranteed by the judicial court system to civilians and military personnel are not legal technicalities, but represent the distillation of nearly 1,000 years' experience under the English and American common law. Many of the constitutional protections enjoyed today were incorporated into the legal system to correct inequities that appeared in early criminal trials. For example, it was the erroneous conviction of William Penn by an English court solely on evidence contained in a letter written by a fellow nobleman that resulted in the right of confrontation and cross-examination. Although Penn vigorously asserted that the writer had acknowledged in a second letter that the contents of the letter admitted into evidence were in error, Penn was nonetheless convicted and sentenced since the nobleman was not required to appear in court. Penn was released only after the witness appeared before the King of England and asserted that the first letter in fact had been false.

Subsequently, the principles of confrontation and cross-examination by the accused of witnesses against him were devised to prevent a repetition of similar injustices. An examination of the history of other procedural concepts concerning the right to be informed of the charge, presumption of innocence, speedy trial, right to counsel and protection against double jeopardy, disclose that many of them grew out of similar situations.

Throughout recent history Anglo-American judicial systems have sought to provide procedural safeguards to those accused of committing criminal offenses. Many of these safeguards, like the right against self-incrimination and the right to a speedy trial, are enumerated in the Constitution. Other safeguards and protections have evolved from court decisions interpreting constitutional provisions.

Earlier it was noted that the Supreme Court and military courts have extended many of these constitutional rights to servicemen. For example in United States v. Jacoby, 11 U.S.C.M.A. 428, 429–31, 29 C.M.R. 244, 245-47 (1960), the United States Court of Military Appeals dis

cussed the application of the Sixth Amendment and the Bill of Rights to military personnel. The Court stated:

[T]he issue [here is] whether it was proper to receive in evidence certain depositions taken upon written interrogatories over the accused's objection that she was thereby denied her constitutional right to be confronted by the witnesses against her.

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The Government argues before us that our [prior] decisions. . . are dispositive of the... issue. Appellate defense counsel, however, challenges our previous interpretation . . . on the ground that it causes the [UCMJ provision in question] to conflict with the Sixth Amendment. . . . Our reexamination of the question convinced us that the accused's position is meritorious

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While I have continually supported the application of [the doctrine of stare decisis] in military law. . . it should never be applied in order to perpetuate a mistaken view. . . . Indeed, it is our duty to overrule and modify decisions which are erroneous, although there has been no legislative change in the law as originally construed.

[I]t is apparent that the protections in the Bill of Rights, except those which are expressly or by necessary implication inapplicable, are available to members of our armed forces . Moreover, it is equally clear that the Sixth Amendment guarantees the accused the right personally to confront the witnesses against him. [Italics added]

The only protections of the Bill of Rights "which are expressly or by necessary implication inapplicable" to servicemen are the right to a Grand Jury indictment before trial for a capital "or other infamous crime". Considerations of discipline require that a soldier not be allowed the degree of freedom of speech or movement enjoyed by a civilian, and for this reason disrespect and absence without leave are criminal offenses in the military.

However, with the exception of the Grand Jury indictment, the UCMJ has insured that virtually all safeguards which govern conduct within the courtroom have been extended to military personnel. An accused in a military trial is entitled to the following rights enjoyed by his civilian counterpart:

1. The right to be informed of the accusation.

2. The presumption of innocence until guilt is established by proof beyond a reasonable doubt.

3. The privilege against self-incrimination.

4. The right to confront the witnesses against him and to crossexamine them.

5. The right to have compulsory process for obtaining witnesses in his favor.

6. The right to a fair, impartial and speedy trial by jury.

7. The right to counsel.

8. Protection from double jeopardy.

In addition to these rights, the military system provides a workable

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