The Case for Military Justice

• Author: Professor Joseph W. Bishop, Jr.
• Pages: 04

I hardly need to tell this audience that in the last decade American military Justice, along with the armed forces generally, has been the target of a rolling barrage of criticism. The quality of that criticism has ranged from the informed and often reason-able, such as the articles of Professor Edward F. Sherman, to the ignorant and dishonest, such as Robert Sherrill's Military Justice is to Jutice as .Military .Music is to Mzisie, which enjoyed large sales and rave revieius, except from me and one or two other cantankerous critics whose point of view was warped by their having some actual knowledge of the subject.

There have indeed been mggestions that the court-martial system should simply be abolished. They do not all come from people like the professional staffers of the American Civil Liberties Union, in whasekses the typical court-martial 18 a kangaroo praceeding in which a wretched conscript is dragged before a panel of sadistic martinets, convicted on the basis of perjured evidence and his own cbnfession, which has been extracted by torture, and sentenced to fifty or sixty years of solitary confinement, chained to the wall of a subterranean dungeon and fed on bread and water. When people like Professor Sherman seridusly suggest that Servicemen should be tried, even for service-cdnnected offenses that affect military discipline, in federal civilian bourts (including American district courts sitting in foreign countries), 2 we are

bound to a8k ourselves why there should be a separate system of

~ * This article is an edited iezsion of Professor Bxhop'n remarks an the OcesJion of the Second Annual Edward H.

Young leetue on Military Legal

Education at The Jvdee Adioeate General's School an 30 Avgu~t 1973. TheDPmlonr expressed are thone of the author and do not necessarily represent the ~ i e w ~ of The Judge Advacate General's School or any governmental agency.

** Richard Ely Professor of Law, Yale Law School. 1 Sea Bishop, Book Review, COMMENTARY,

June, 1971, p. 91.

Sss Sherman, Military Juttoe Without 4lilitaw Control, 82 Y m L. J.

1398 (1973).

criminal juStice for members of the armed farces VhJ- not tr) them in the civilian courts, xith civilian process and civilian juries, like anybody else? From the constitutional stand-point, it would be perfectly possible for Cangrea? to repeal the Uniform Code of Xilitary Justice, add to the Vnited States Penal Code sections covering the p~irilj militarr offenses, and leave the trial of rogues military to the federal and state courts. which hare alwayd had, and often exercised. jurisdiction to try soldiera x-ho wolnte c ~ n l i m penal lawThe experiment has been tried in other countries. Under the Grundgesetr (the "Basic Law', essentially a constitution) of the Federal Republic of Geimanv, fnr example, the trial and punwhment of members of the armed forces for all but petty offenspi, including such purely military crimes as absence without leave and disahedience of orders. is by and large left to the civilian courts. The draftsmen of the U'wt German Ila-ir L m course, reacting against a monstrous overdose of militara time when Germany had no armed forces and no spokesmen for the military point of vie\<. for="" similar="" reasons="" japan="" forces="" get="" along="" without="" a="" militar="">- penal code or courts-martial. But in England, France. Russia and the Pnited States, as in practically ail of the other malor military power~, soldiers are subjected to a distinctire code of milirarr justice administered by military courts. although in the ~mintriec mentioned there may be r e ~ i e ~ by civilian appellate judgesThe reamns usually adduced in support of such a system, other than mere adherence to ancient custom. may be summarized aa fallo\vvs 1. Military discipline cannot be maintained by the civilian criminal proces~, which is neither swift nor certain Estimates of the percentage of ~irilian mimed which in this country go unpunirhed range from 80 to 95 per cent. There is some evidence

The Gnndgrsetr permit? military cavrts to P X ~ T C ~ J ~ complete criminal

ivrisdiction over members of the armed forces in time of war, OT when they are stationed outside Germany or on naval ~ e & d s at sea So far as I know,no use has yet been made of this authority. Military commanders can mflmminor "disciplinary puniehments, of which the most ae~ere is three weeka confinement, and Military Service Cwrts can ~mpoae "career punishment," ineluding reduction I" rank and pay and diahanorable discharge, on career soldiers. See gma~dly Moritz, The AdrninCtrotian of Jwtios within the Annad Forcer of tha...