Courts-martial of the United States are trials conducted by the U.S. military or by state militaries. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice (UCMJ). They can also be convened for other purposes, including military tribunals and the enforcement of martial law in an occupied territory. Federal courts-martial are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial, which contains the Rules for Courts-Martial (RCM), Military Rules of Evidence, and other guidance. State courts-martial are governed according to the laws of the state concerned. The American Bar Association has issued a Model State Code of Military Justice, which has influenced the relevant laws and procedures in some states.
Courts-martial are adversarial proceedings, as are all United States criminal courts. That is, lawyers representing the government and the accused present the facts, legal aspects, and arguments most favorable to each side; a military judge determines questions of law, and the members of the panel (the military equivalent of a jury) (or military judge in a judge-alone case) determine questions of fact.
State National Guards (air and army), can convene summary and special courts martial for state-level, peacetime military offenses committed by non-federalized Guard Airmen and Soldiers, in the same manner as federal courts martial proceed. The authority for State National Guards to convene courts martial is under Title 32 of the US Code. States that have militaries (State Guards) outside the federally regulated National Guard convene courts-martial by authority of state laws.
Historical development From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its British predecessor, predates the Articles of Confederation and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.
Tribunals for the trial of military offenders have coexisted with the early history of armies.William Winthrop, Military Law and Precedents 45 (2nd Ed. 1920 reprint) The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous, fighting forces. Both the ancient Greeks and the Romans had military justice codes, although no written versions of them survive.Captain David M. Schlueter, The Court-Martial: An Historical Survey, 87 MIL. L. REV. 129 (1980) Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.See generally Winthrop, Military Law and Precedents, supra., at 45-47.
The concept of the American military court-martial was derived from the Court of Chivalry in England and the military code of Sweden's King Gustavus Adolphus.Schlueter, The Court-Martial, supra., at 132 These courts both strove to strike a balance between the demands of good order and discipline and the concept of due process.Id., at 134 This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War. The early British Articles of War reflected a concern for due process and panel member composition.Major Christopher W. Behan, Don't Tug on Superman's Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 176 Mil. L. Rev. 190, 203 (2003)
When war broke out between the American Colonists and the British in 1775, the British were operating under the 1765 edition of the Articles of War.Gordon D. Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 HARV. L. REV. 293, 298 n.41 (1957) This version would serve as the template for military justice in the Continental Army.Behan, Don't Tug on Superman's Cape, supra, at 205 When the United States declared independence and fought the Revolutionary War, "it had a ready-made military justice system." Despite the Colonists' dissatisfaction with the British, they still recognized the intrinsic value of the British military justice system in providing good order and discipline to its own armed forces.Major Richard D. Rosen, Civilian Courts and the Military Justice System: Collateral Review of Courts-Martial, 108 Mil. L. Rev. 5, 18 (1985)
The 1765 British Articles of War were the template for the American military justice system. Accordingly, a general court-martial panel consisted of thirteen commissioned officers selected by a convening authority, with a field grade officer as president.American Articles of War of 1776, § XIV, art. 1 (reprinted in Winthrop, Military Law and Precedents, supra, at 961) A regimental court-martial consisted of five commissioned officers selected by the regimental commander; however, unlike the British equivalent, the regimental commander could not sit as president.1776 Articles, § XIV, art. 11 Further, the Continental Congress broke away from the British system in an even more significant way: the American Articles of War were created by a legislative enactment and not by an executive order. Thus, in the American system, the legislature undertook the government of the armed forces from the beginning—military justice was not going to be left to the executive. Second, Congress demonstrated its flexibility and willingness to change the Articles as necessary. The top military lawyer, Colonel William Tudor, informed Congress that the Articles were in need of revision. Congress would go on to revise the Articles several times to reflect the realities of a small military force. Nonetheless, the commander retained his role in the administration of justice.Behan, Don't Tug on Superman's Cape, supra, at 211-212
Until 1916, a service-member accused in a general court-martial did not have a right to a defense counsel. The service member could, however, request a defense counsel or pay for one. A judge advocate, prior to 1916 had a three-fold duty. To prosecute the case, to ensure that the accused soldier's or sailor's rights were protected – including making sure that witnesses favorable to the accused were present – and to advise the court-martial on the law. Until 1969, there was no military trial judge ensuring that an accused's due process rights were protected. According to University of New Mexico School of Law Professor Joshua E. Kastenberg, there were aspects of a court-martial that exceeded state criminal courts in due process protections, but, there were widespread due process deficits which caused Congress to reevaluate courts-martial in 1920 and 1945-50 respectively.Joshua E. Kastenberg, To Raise and Discipline an Army: Major General Enoch Crowder, the Judge Advocate General's Officeand the Realignment of Civil and Military Relations in World War I(DeKalb: Northern Illinois University Press, 2017), 40-92
81st Congress sets out to create the UCMJ After World War II, concerns from veterans’ organizations and bar associations regarding the military justice system in general,Report of the Commission on the 50th Anniversary of the Uniform Code of Military Justice p. 2 and, in particular, the problem of unlawful command influence of courts-martial, led to substantive Congressional reform. The 81st Congress (1949–51) set out to create a unified system of military justice for all the Federal military services, and appointed a committee chaired by Harvard Law Professor Edmund Morgan to study military justice and draft appropriate legislation. According to Professor Morgan, the task was to draft legislation that would ensure full protection of the rights of individuals without unduly interfering with either military discipline or the exercise of military functions. This would mean a "complete repudiation of a system of military justice conceived of only as an instrument of command," but would also negate "a system designed to be administered as the criminal law is administered in a civilian criminal court."Edmund Morgan, The Background of the Uniform Code of Military Justice, 6 Vand. L. Rev. 169, 174 (1953) The result was the Uniform Code of Military Justice (UCMJ)—a code that afforded a measure of due process to service members, while retaining command control over the appointment of court-martial members.
Subsequent measures in Congress on UCMJ The next time Congress had formal hearings on the UCMJ was when it passed the Military Justice Act of 1983. In 1999, the Secretary of Defense was required by Congress to study the issue of command selection of panel members. Congress did not take action when the Joint Services Committee (JSC) concluded that the "current system is most likely to obtain the best members within the operational constraints of the military justice system."
In 2001, the commission on the 50th Anniversary of the Uniform Code of Military Justice disagreed with the 1999 JSC Report, noting "there is no aspect of military criminal procedure that diverges further from civilian practice, or creates a greater impression of improper influence than the antiquated process of panel selection."Report, page 7
Constitutional foundation for federal courts-martial The Framers of the Constitution were cognizant of the power struggle between Parliament and the King regarding the powers of the military. Many of the Framers were combat veterans from the Continental Army and understood the demands of military life and the need for a well-disciplined fighting force. The solution to the government of the armed forces was a classic balancing of constitutional interests and powers. They assured that Congress—with its responsiveness to the population, its fact-finding ability, and its collective deliberative processes—would provide for the government of the armed forces.Major Christopher W. Behan, Don't Tug on Superman's Cape: In Defense of Convening Authority Selection and Appointment of Court-Martial Panel Members, 190 MIL. L. REV. 176, 212 (2003)
The Framers of the Constitution had a great respect for the value of separation of powers. One of the primary goals of the Constitutional Convention, in remedying the defects of the Articles of Confederation, was to create a government in which separate branches of power served as a check and balance against the other. Principles of separation of powers also applied to the military. The Framers vested power in the executive and legislative branches, but left the judiciary with only a collateral role in governing the armed forces.Id., at 214.
By distributing power over the armed forces between the legislative and executive branches, the Framers "avoided much of the political-military power struggle which typified so much of the early history of the British court-martial system."Captain David M. Schlueter, The Court-Martial: A Historical Survey, 87 MIL. L. REV. 129, 149 (1980) Moreover, the Framers made it clear that while the command of the military lie with the executive, the military would be governed and regulated according to the law handed down by the legislative branch. Therefore, the government of the armed forces would always reflect the will of the people as expressed through their representatives in Congress.Behan, Don't Tug on Superman's Cape, supra, at 214.