While there has been a great deal of comment in the last few years on the subject of military law, the bulk of it has been concerned with the technicalities and procedures required by the Uniform Code of Military Justice. In order to provide an adequate background and foundation upon which new line officers may exercise their duties in this field, it is necessary to review some of the basic fundamentals.
The nature of Military Law has not been appreciated by many of its critics. There has been a tendency to confuse it with Civil Law. It should be noted that the Manual for Courts-Martial for the United States provides that “The specific provisions of the Constitution relating to military jurisdiction are found in the powers granted to Congress, in the authority vested in the President, and in a provision of the Fifth Amendment.” The specific parts of the Constitution in question are in Article I, Section 8: “The Congress shall have the power to make Rules for the Government and Regulation of the land and naval Forces; . . .” In Article II, Section 2, the Constitution provides that the “President shall be Commander in Chief of the Army and Navy of the United States. . . .” Military Law is not referred to in the portions of the Constitution relating to the judicial branch of the Government and the only other reference is in the Fifth Amendment, which states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia when in actual service in time of War or public danger.” (The italics are the author’s).
It should be noted that the language of the Constitution makes the execution of Military Law a part of the executive function of the Government rather than of the judicial. This principle is followed in the mechanism provided under the Uniform Code of Military Justice. The basic operation of the Code, the formulation of charges, the assignment of courts and the orders for trial, are handled in the normal chain of the command. Even the various reviews and appeals are carried out within the Executive Department. This executive nature of Military Law is one which deserves considerable study. From the nature of military operations and organization and the demands of combat, it would obviously be impracticable to enforce Military Law through a separate arm of the Government. It would likewise be impracticable to subordinate the combat mission of a naval unit to the task of nursing a small percentage of uncooperative individuals.
Military Law provides one of the chief elements in maintaining discipline in a military organization. Where the customs of the country grant so much freedom to individuals, the execution of Military Law takes on a special significance. It is normally required for a distinct minority of the men in the Navy, since most have sufficient understanding and willingness to support the missions of the U. S. Navy. With them no compulsion is necessary. There are, however, in most organizations a small number of men who do not have this high degree of fundamental indoctrination in U. S. history and principles. For them an element of force is necessary. If they were overlooked and permitted to evade their obligations as citizens, the result would be a rapid disintegration of the organization and deterioration of its morale and discipline. There would also be a failure to provide adequate military forces to defend the United States. This is well indicated by the fact that in both peace and war the United States has found it necessary to draft men into the military services. Such a draft can be effective only when it is supported by a means of enforcing its intent. This means is provided by the Uniform Code of Military Justice.
It should be emphasized again that military law is an inherent part of the command, or executive, function of any military organization. One of the most common criticisms which has been made by ill-advised or inexperienced critics has been that military law is not like our U. S. civil law. It is not intended to be. Anyone with combat experience or even a reasonable understanding of the general principles of management can see that military operations in time of war could not be conducted by two separate but coequal branches of the Government such as the executive and judicial in the field of civil law. Such a major division of authority and responsibility would prevent any effective operations and would leave the country with no one who had the duty [and the authority] to “provide for the common defense.” There are few cases in history where a military unit has been successfully commanded by two different men simultaneously. It is likewise obvious that carrying out all of the details of civil law with its attendant delays and complexities would be impracticable in the field in time of war. If you can, attend a few sessions of the police courts in any large city, and also the superior courts, to see how civil law operates.
A second major difference between military law and civil law in the United States is that military law is a “coded” law. This is obvious in the first sentence of the Act of May 5, 1950, as presented in the Manual for Courts-Martial, which states: “ . . . A Uniform Code of Military Justice ... is hereby enacted.” This word code has a technical significance because it serves to distinguish it from the type of civil law which prevails in this country. Our civil law is based on a great mass of precedents, in other words “common law,” as well as on the actual legislation. This is in accordance with a principle of English law which requires that the courts “stand by decided cases.” It is obvious that as a general principle this is a good one and should be followed, but it is equally obvious that it cannot be followed blindly without an understanding of its nature. A general argument usually stated to justify common law is the fact that it permits the courts to respond to public policy and to new conditions without the necessity of waiting for new legislation. It is obvious, then, that this flexibility and growth in the law can only take place where precedents are not followed blindly. Conditions change and public policy changes. A rigorous adoption of precedent requires that all conditions be exactly the same for the precedent to apply. These conditions are rarely met in actual trials.
In coded law, the judge (or the military court) may interpret the language of the written law as he understands it, regardless of precedent. Hence, the actual trial procedure is much simpler, not resting on a tedious search for precedents. Where such search is conducted, it will usually be found that there are precedents on both sides of the case. The court’s problem, then, becomes that of determining which precedent more closely resembles that of the case in hand. This simpler nature of the coded law as compared to common law is also illustrated in the oath which has been provided for members of the court. The essential elements of this oath are as follows: “You, AB, CD *** and YZ, do swear (or affirm) that you will faithfully perform all the duties incumbent upon you as a member of this court; that you will faithfully and impartially try, according to the evidence, your conscience, and the laws and regulations provided for trials by courts-martial, the case of (the) (each) accused now before this court; and that if any doubt should arise not explained by the laws and regulations, then according to the best of your understanding and the custom of war in like cases; that you will not divulge the findings and sentence in any case until they shall have been duly announced by the court; and that you will not disclose or discover the vote or opinion of any particular member of the court upon a challenge or upon the findings or sentence unless required to do so before a court of justice in due course of law. So help you God.” (Italics supplied.) In this oath, the “custom of war” provides some guidance for problems not covered by the “laws and regulations.” In general, the custom of war requires speedy direct decisions, places the combat mission paramount, and also recognizes the authority of commanders.
In carrying out this oath it is always necessary for you to keep in mind both the general good (or the national welfare) and the interests of the individual. They are equally important, since without the national government the individuals would have no general protection from foreign aggression or freedom from internal conflicts. No other mechanism of government has approached the success of the United States Government in preserving and advancing both the general welfare and the interests of individuals. Since our country likewise has been founded on principles of inherent justice to all and the utmost practicable rights to the individual, these cannot be unnecessarily infringed upon. In making decisions as members of courts-martial you are participating in one of the highest and most responsible functions of the government. You must understand your military duties, the Uniform Code of Military Justice, and the particular case in question. No decision you make can ever be questioned as long as you keep in mind and carry out all the elements of your oath.
It is necessary that you understand the broad basis for your responsibilities. There has been considerable recent discussion on the “rights” of individuals in the naval service but there has not been enough emphasis on their responsibilities. The “Code” contains the following clause which is peculiar to the Navy. This states: “All commanding officers and others in authority in the naval service are required to show in themselves a good example of virtue, honor, patriotism, and subordination; to be vigilant in inspecting the conduct of all persons who are placed under their command; to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Navy, all persons who are guilty of them; and to take all necessary and proper measures, under the laws, regulations, and customs of the naval service, to promote and safeguard the morale, the physical wellbeing, and the general welfare of the officers and enlisted persons under their command or charge.” It should be noted that this is a positive duty and requires positive action on the part of all persons in the naval service. It requires all persons in authority both to provide a high standard of personal example in their own actions, and also to be vigilant in inspecting the conduct of all persons who are placed under their command. This is simply a reaffirmation of the principles that have been recognized for centuries, that a ship at sea requires special consideration and special methods of administration as compared to either the other military services or civil life.
Your duties are outlined in the Manual for Courts-Martial which states that “Members of courts-martial hear the evidence, determine the guilt or innocence of the accused, and, if the accused is found guilty, adjudge a proper sentence.” This is amplified to some extent in Article 74 (a) (3) which discusses “Reasonable doubt.” It should be noted that a “court-martial which acquits because, upon the evidence, the accused may possibly be innocent, falls as far short of appreciating the proper amount of proof required in a criminal trial as does a court which convicts on a mere possibility that the accused is guilty.” This is merely a technical way of stating that one of the basic problems of law is to balance the interests of the majority against the interests of a minority or of an individual. The history of law is full of attempts to define these interests and provide mechanisms for accomplishing them, but no absolute agreement has been reached either on definitions or on the mechanisms themselves. It is difficult to find general agreement even on the definition of either “law” or “justice.” In the United States, however, the current general trend seems to emphasize the need for carrying out the wishes of the majority even though this results in some sacrifice on the part of particular minorities. In the military service this tendency is stressed even more, as can be readily seen when the punitive articles of the Uniform Code of Military Justice are examined. These provide a long list of military crimes and punishments which must be enforced, even though such enforcement results in loss of the individual’s life in combat. To mention a few of these crimes, such as desertion, mutiny, misbehavior before the enemy, aiding the enemy, and disrespect and disobedience of orders, is enough to emphasize the basic requirements of military service.
It is further recognized in the Code that most of the military crimes apply both in peace and in war. This is necessary because a military organization such as the Navy must always be ready. It may even find that it has to conduct combat operations, such as those in Korea, though the country is officially at peace. There are a few exceptions, however, to this but their specific mention as exceptions is ample evidence that the problem has been well recognized by the writers of the Code and that where such exceptions were not made, the punitive articles apply with full force in both peace and war.
In review I would strongly urge all officers to become familiar with the Uniform Code of Military Justice. You must understand the basic principles of military law and not be misled by undue emphasis on technicalities or procedural details. The Code itself provides excellent instructions in such details and can be followed by any intelligent officer. In addition to the Manual for Courts-Martial, an excellent story of the history and philosophy of law is provided in a book called The Law by Wormser, published by Simon and Schuster in 1949. Additional material can be found in Winthrop’s textbook on military law. While this is an older book and was written long before adoption of the Uniform Code of Military Justice, it is primarily in the procedural portions that the changes appear. The basic principles of military law have not been changed since they rest clearly on the Constitution. To repeat, they rest on the power of the Congress “to make Rules for the Government and Regulation of the Land and Naval Forces.”