Military Regulations

The Congress shall have Power To ...make Rules for the Government and Regulation of the land and naval Forces....

Article I, Section 8, Clause 14

In his Commentaries on the Constitution of the United States, Justice Joseph Story remarked that Congress's power to govern and regulate the land and naval forces is "a natural incident to the preceding powers to make war, to raise armies, and to provide and maintain a navy." Yet the Framers had overlooked this "natural incident" until after the Committee of Detail submitted its draft. Only then was a motion made from the floor to copy the language from the Articles of Confederation into the new Constitution, making explicit the grant of plenary power to Congress. It passed without controversy. By placing the power in Congress, the Framers helped to define the respective roles of the legislature, the executive, and the judiciary over the Armed Forces and thus lessened the chances for serious conflict. Story explains: "The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive." The central purpose of the clause is the establishment of a system of military law and justice outside of the ordinary jurisdiction of the civil courts. Tradition and experience taught the Framers that the necessities of military discipline require a system of jurisprudence separate from civilian society.

The American experience with military law predates the Constitution. In 1775, the Continental Congress adopted codes of military law for the Army and the Navy—largely based on corresponding British codes. John Adams, then a Massachusetts representative to the Continental Congress and chairman of its Naval Committee, wrote both Rules for the Regulation of the Navy of the United Colonies (1775) and the American Articles of War (1775). Following the adoption of the Constitution, the First Congress decided that both of these codes would continue in force. The American Articles of War, although revised several times, remained the basic code for the United States Army until 1917. Revisions included changes to punishments; rules governing the appointment of courts-martial; and, during the Civil War, the expansion of military jurisdiction over crimes and persons leading to major contests in the courts of law.

A common criticism of the Articles was that they were too harsh. This criticism remained even after the Articles were significantly modified in 1917 to deal with a mass army of citizen-soldiers. Critics charged that punishments were disproportionate to the crimes and that military authorities had too much discretion. For instance, following a race riot in Houston in 1917, the military hastily executed thirteen black enlisted soldiers. The same complaint arose during World War II, leading to the Elston Act of 1948, which modified the Articles. Such criticisms and the creation of a unified Department of Defense finally led Congress to enact the Uniform Code of Military Justice (UCMJ) in 1950. The Navy code followed a similar path.

The UCMJ is a compilation of federal statutes that establish uniform policies, procedures, and penalties within the military justice system. Congress's objective in creating the UCMJ was to eliminate disparities between the codes of the Army and Navy and to reduce, insofar as it was possible, "command influence," considered by critics to be the bane of a fair military justice system.

Throughout the history of the United States, the civil courts have been highly deferential to decisions of the military justice system. That is particularly true in the enforcement of military orders. The more difficult question is determining whether the military or civilian courts have jurisdiction over military personnel charged with "ordinary" or "civilian" crimes such as murder, or robbery, or rape. Most civilian court reviews of courts-martial center on whether the military had proper jurisdiction over the cause.

Although commanders in the field have always possessed authority to punish infractions of military discipline, it was not until 1863 that Congress permitted the trial during wartime of soldiers who were charged with committing civil crimes such as murder. Until that time, soldiers had been turned over to state courts for trial. Subsequently, Congress expanded court-martial jurisdiction over civil offenses. After the Korean War, however, the Supreme Court and the federal appeals courts have limited the reach of the military's jurisdiction to those acts that are "service connected."

There is no dispute that a civilian offense committed by a soldier on a military base, or in the theatre of war, or overseas is service connected and falls under military jurisdiction. Civilian dependents charged with crimes during peacetime, however, may not be tried by court-martial, Reid v. Covert (1957), Grisham v. Hagan (1960), at least while the civil courts are still in operation. Ex parte Milligan (1866). To avoid such civilians being charged by host nations abroad, in 2000, Congress passed the Military Extraterritorial Jurisdiction Act. That law imposes federal jurisdiction for crimes allegedly committed by civilians accompanying U.S. Armed Forces abroad, and also for military personnel charged with civil crimes but over whom the military has no further control.

Outside of these categories, federal courts consider a number of factors to determine if the act of the accused member of the military was service connected. O'Callahan v. Parker (1969). Among others, the factors considered include (1) whether the victim of the crime was a member of the military, (2) whether the accused was properly off base when the crime occurred, (3) whether military property was involved, and (4) whether the act by the accused was within his military duties. When reviewing the jurisdiction of a military court, the federal courts utilized these and similar factors on a case-by-case basis. However, in Solorio v. United States (1987), the Supreme Court reversed O'Callahan and found that the military status of the defendant was sufficient by itself to establish the jurisdiction over the person irrespective of whether the offense was service connected. Subsequent to Solorio, military courts obtained more jurisdiction over cases that had been previously tried by the civilian courts. Judicial deference toward military exigencies goes beyond respect for the different rules, procedures, and liabilities in the UCMJ. Deference also includes allowances for military orders and regulations that would hardly be constitutional in a civilian context.

The military courts and tribunals authorized by Congress are established pursuant to Congress's powers under Article I. They do not have the same protections and independence as Article III courts. Military courts fall into two jurisdictional categories: (1) martial and military courts of inquiry, which deal with military personnel; and (2) military commissions (or tribunals) and provost courts, which deal with civilians who have fallen under military jurisdiction. Depending on the degree of punishment attached to the offense, the military courts of first instance are the summary court-martial, the special court-martial, and the general court-martial, each of which may be convened by a successively more senior military authority. Following the decision of the court-martial, the convening authority reviews the decision and may revise it but only in favor of the defendant. The record is then further reviewed by a Judge Advocate general and, in cases of a serious sentence, is reviewed yet again by the Court of Military Review for the appropriate service. The UCMJ established a Court of Military Appeals (renamed in 1994 as the U.S. Court of Appeals for the Armed Forces), which, for the first time in United States history, created a civilian court with appellate jurisdiction over military justice. The U.S. Court of Appeals for the Armed Forces may review decisions of the Court of Military Review. Finally, upon a writ of certiorari, the Supreme Court can hear petitions from decisions by the U.S. Court of Appeals for the Armed Forces.

Collateral appeal to the federal courts is also available, normally through a writ of habeas corpus. They cannot review the factual basis of the decision, and their collateral review is limited to issues of jurisdiction, whether the proceeding denied fundamental constitutional rights, Burns v. Wilson (1953) (see the Fifth Amendment), and whether the military court gave full and fair consideration to the constitutional issue raised. Moreover, collateral review on a petition for habeas corpus is only available if the petitioner is in actual military custody, and he has exhausted all available military-justice remedies.

As events after 9/11 indicate, a controversial aspect of military justice is the establishment of military tribunals. Military tribunals established in occupied territory are governed by international law. In Dow v. Johnson (1880), the Court ruled that the law governing an army invading an enemy's country is not the civil law of the invaded country or of the conquering country "but military law—the law of war."

The Court has upheld the authority of the President to try enemy aliens (and United States citizens working with them) by military tribunal in Ex parte Quirin (1942). The Court held that enemy aliens (in this case saboteurs, who had entered the United States in secret for the purpose of committing hostile acts) are not entitled to prisoner-of-war status, but are unlawful combatants who can be tried by military tribunal. The Court, in Rasul v. Bush (2004), relying on Burns and other cases, held that the federal habeas statute confers federal district court jurisdiction to hear challenges of alien detainees held at Guantanamo Bay. However, the Court explicitly did not decide the substance of those rights and limited the habeas extra-territorial reach to Guantanamo Bay, which it said had a unique relationship to the United States. At the same time, in Rumsfeld v. Padilla (2004), the Court, on jurisdictional grounds, avoided ruling on the extent of the President's power to keep a U.S. citizen in military custody as an enemy combatant; but in Hamdi v. Rumsfeld (2004) the Court decided, without a majority opinion, that the government must give a U.S. citizen held in the United States some type of hearing at which he may contest the facts on which the government decided to treat him as an enemy combatant.

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David F. Forte
Professor of Law
Cleveland-Marshall College of Law
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Mackubin Owens
Professor of National Security Affairs
Senior Fellow of the Foreign Policy Research Institute
National Security Affairs (NSA) Department
United States Naval War College