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Naval Institute Press
Evolving Military Justice / Edition 1

Evolving Military Justice / Edition 1

by Eugene R. Fidell, Dwight H. Sullivan


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For decades, debate has raged over whether the military justice system is foremost a tool to preserve discipline within the armed forces or a means of dispensing justice on a par with civilian criminal justice systems. From the dawn of American military law in 1775 through World War II, the answer was obvious: military justice was primarily a tool commanders used to maintain discipline. In 1950, however, Congress enacted the Uniform Code of Military Justice. Through amendments over the past half century, the American military justice system has evolved into what it is today: not quite a mirror image of the civilian federal criminal justice system, but vastly more fair than in the days of drumhead courts and the lash, according to the authors, both practicing attorneys and former military officers.

Their book scrutinizes the current military justice system, identifying its strengths and weaknesses and pointing the way toward further improvements. Included are essays written about the American military justice system over the past decade by such notable authorities as Sam Nunn, former Senator from Georgia; Andrew S. Effron, Judge of the United States Court of Appeals for the Armed Forces; and Brig. Gen. Jerry S.T. Pitzul, Judge Advocate General of the Canadian Forces. Some defend military justice, while others are critical. The book then shifts its focus overseas to compare the U.S. system with those of several other common law countries. Designed to provoke thought about military justice among military justice practitioners and military line officers alike, the book is introduced with an essay by William K. Suter, Clerk of the U.S. Supreme court.

Product Details

ISBN-13: 9781557502926
Publisher: Naval Institute Press
Publication date: 04/09/2002
Edition description: New Edition
Pages: 392
Product dimensions: 6.36(w) x 8.98(h) x 1.43(d)
Age Range: 1 Year

Read an Excerpt

Evolving Military Justice

Edited by Eugene R. Fidell and Dwight H. Sullivan


Copyright © 2002 Eugene R. Fidell and Dwight H. Sullivan.
All rights reserved.
ISBN: 1557502927

Chapter One

The armed forces of the United States comprise the most effective military force in the world today. Our military forces have the training, equipment, and leadership necessary to defend the vital national interests of the United States. At a time when our nation is the sole remaining superpower and a model for emerging democracies throughout the world, the effectiveness of our military forces is a matter of the highest national importance.

    Morale and discipline of the armed forces are at the heart of military effectiveness. Military law is a vital element in maintaining a high state of morale and discipline. Members of the armed forces must have a clear understanding of the standards of conduct to which they must conform, and they must also have confidence that the system of justice will operate in a fair and just manner.

    The constitutional responsibility for establishing regulations for land and naval forces is vested in Congress. The rights of military personnel are established by Congress and the executive branch, acting under the authority granted by Congress. The Supreme Court's jurisprudence in the field of military law has been characterized by the highest degree of deference to the role of Congress and respect for the judgment of the armed forces in the delicate task of balancing the interests of national security and the rights of military personnel. In this essay I will review the fundamental principles enunciated by the Supreme Court in military cases and assess the continuing validity of these principles as a guide for judicial review of military cases.

Military Service Is a Unique Calling

It is the primary business of armies and navies to fight or be ready to fight should the occasion arise.

The military constitutes a specialized community governed by a separate discipline from that of the civilian.

The military must insist upon a respect for duty and a discipline without counterpart in civilian life.

The primary mission of the armed forces is to defend our national interests by preparing for and, when necessary, waging war, using coercive and lethal force. Responsibility for the awesome machinery of war requires a degree of training, discipline, and unit cohesion that has no parallel in civilian society. The armed forces must develop traits of character, patterns of behavior, and standards of performance during peacetime in order to ensure the effective application and control of force in combat. Members of the armed forces are subject to disciplinary rules and military orders twenty-four hours a day, regardless of whether they are actually performing a military duty.

    Military service is a unique calling. It is more than a job. Our nation asks the men and women of the armed forces to make extraordinary sacrifices to provide for the common defense. While civilians remain secure in their homes, with broad freedom to live where and with whom they choose, members of the armed forces may be assigned, involuntarily, to any place in the world, often on short notice, often to places of grave danger, often in the most spartan and primitive conditions. For the sailors in the Persian Gulf, their ship is home. For the soldiers on the DMZ in Korea, their barracks is home. For the marines who served in Somalia in Operation Restore Hope, their tent was home.

    Military men and women do not have the right to choose with whom they will share these homes. They do not have the right to choose with whom they will share these burdens. They do not have the right to choose whether they will be placed in harm's way or under what conditions. Most important, they do not have the right to choose when and where they may be asked to make the ultimate sacrifice for their country.

    U.S. Army Chief of StaffGen. Gordon Sullivan has eloquently summarized the differences between military and civilian life: "What separates us from civilian society is ultimate sacrifice, the sacrifice of our lives for our country. We have to sublimate everything that we do to selfless service to our Nation. Duty, honor, country.... It is, in fact, that mission, the protection of the Nation, which must govern everything that we do."

    Although the individual decision to join the armed forces, in the absence of actual draft calls, is a voluntary choice, there is no constitutional right to serve in the military. The armed forces routinely restrict opportunities for service on the basis of circumstances such as physical condition, age, sex, parental status, educational background, medical history, and mental aptitude. These restrictions primarily reflect professional military judgment as to what categories of personnel contribute to overall combat effectiveness rather than narrow performance criteria related to the performance of a specific task. They are based on the fact that members of the armed forces are not recruited for a single job at a single location. Each servicemember must be capable of serving not as an individual, but as a member of a team, in a variety of assignments and locations, often under dangerous and life-threatening conditions.

    Once military status is acquired, military service loses its voluntary character. Once an individual has changed his or her status from civilian to military, that person's duties, assignments, living conditions, privacy, and grooming standards are all governed by military necessity, not personal choice. In a nation that places great value on freedom of expression, freedom of association, freedom of travel, and freedom of employment, the armed forces stand as a stark exception. Military commanders have the authority, as they have throughout our nation's history, to tell servicemembers where to live, where to work, and when they must put their lives at risk. Further, commanders are authorized to use the criminal law, the Uniform Code of Military Justice, to punish those who disobey any such orders.

Unit Cohesion Is the Foundation of Combat Capability

To accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.

Discussing esprit de corps, Gen. H. Norman Schwarzkopf, U.S. Army (Ret.), who commanded U.S. forces in Operations Desert Shield and Desert Storm, stated:

What keeps soldiers in their foxholes rather than running away in the face of mass waves of attacking enemy, what keeps the marines attacking up the hill under withering machine gun fire, what keeps the pilots flying through heavy surface-to-air missile fire to deliver bombs on targets is the simple fact that they do not want to let down their buddies on the left or on the right.

They do not want to betray their unit and their comrades with whom they have established a special bond through shared hardship and sacrifice not only in the war but also in the training and the preparation for the war.

It is called unit cohesion, and in my 40 years of Army service in three different wars, I have become convinced that it is the single most important factor in a unit's ability to succeed on the battlefield.

General Sullivan has emphasized the importance of the bonds of trust between soldiers. Quoting from a letter in which one soldier wrote to another, "I always knew if I were in trouble and you were still alive that you would come to my assistance," General Sullivan added: "Every officer in the United States Army ... every soldier and noncommissioned officer ... everyone in the services must know that ... I will give up my life for them; and they, in turn will give up their life for me. I have to have trust in them, and them in me."

    Gen. Colin Powell, during his tenure as chairman of the Joint Chiefs of Staff, emphasized that

to win wars, we create cohesive teams of warriors who will bond so tightly that they are prepared to go into battle and give their lives if necessary for the accomplishment of the mission and for the cohesion of the group and for their individual buddies. We cannot allow anything to happen which would disrupt that feeling of cohesion within the force.

General Powell noted that the armed forces give constant attention to the development and maintenance of unit cohesion.

Bonding begins on the first day of boot camp. Bonding takes place every time a GI joins a new unit. A unit must bond as a fighting force before it is sent to the battlefield. Unit members work together, train together, and deploy together sharing experiences that contribute to the development of cohesion. Mutual trust, common core values, self-confidence, and realization of shared goals help to form the cohesive military team. Cohesion requires the sacrifice of personal needs for the needs of the unit, subjugating individual rights to the benefit of the team.

While individual initiative is rewarded, the contribution of the team—the cohesive unit—is what guarantees military success.

    Dr. William Darryl Henderson, a decorated combat veteran, former commander of the Army Research Institute, and author of Cohesion: The Human Element in Combat, has illustrated the role of unit cohesion in transforming a collection of disparate individuals into a motivated, combat-capable group willing to endure and prevail amid the horrors of war:

The nature of the relationship among soldiers in combat is a critical factor in combat motivation....

The real question is: why soldiers fight? What causes soldiers to repeatedly expose themselves to the most lethal environment known, instead of taking cover or leaving the area as quickly as possible.

Combat motivation is not a mythical force that emerges on the battlefield. It must be developed and maintained well in advance of any war....

A central finding of cohesion research is that the nature of modern war dictates that small-unit cohesion is the only force capable of causing soldiers to expose themselves repeatedly to enemy fire in the pursuit of unit objectives.

The confusion, danger, hardship, dispersion, and isolation of modern war requires that soldiers, sailors, and airmen in combat be controlled and led through an internalization of soldier values and personal operating rules that are congruent with the objective, goals, and values of the organization.

    Dr. Henderson summarized his findings on the importance of unit cohesion by quoting S. L. A. Marshall, who noted that "one of the simplest truths of war is that the thing which enables an infantry soldier to keep going with his weapon is the near presence or presumed presence of a comrade."

    Dr. David Marlowe, chief of the Department of Military Psychiatry at the Walter Reed Army Institute of Research, has observed that unit cohesion must be developed long before a unit is on the battlefield: "Cohesion is not something magical. It does not suddenly happen the moment the bullets come. If it was not there to begin with, it is going to take a long time and some dead and mangled bodies before you get it."

    Dr. Marlowe has also noted that while it is difficult to project current trends into the future, unit cohesion will probably continue to be a paramount concern:

Technological advances, smaller forces, battlefield dispersal, and the shift to a force projection modality have made the continuing maintenance of highly cohesive units more important to the future than they have ever been in the past and the immediate present.

In the past, in time of danger we have usually been ... afforded the luxury of time in which to create highly cohesive units to counterpunch or strike the enemy. When we have not had that luxury, the results, as in the initial results of the Korean conflict, were disastrous for our soldiers.

The speed with which events and their consequences now overtake us make it imperative that our forces be able to make an immediate transition from peace to war. High continuing levels of cohesion are critical to making that transition with maximum unit effectiveness and minimal short- or long-term negative effects on the mental health, physical health, and performance of the soldier.

The end of the cold war has not diminished the need for military forces composed of readily available, highly cohesive units. Events in Somalia and the former Yugoslavia, as well as continuing tensions in areas ranging from the Korean border to the Persian Gulf, have demonstrated that units-in-being must be prepared to deploy to hostile, inhospitable conditions, with little advance warning or preparation.

Military Personnel Policy Must Facilitate the Assignment and Worldwide Deployment of Members of the Armed Forces

The essence of military service is the subordination of the desires and interests of the individual to the needs of the service.

Deployment to the field or on board vessels for training or operations is one of the defining characteristics of military service. Although many servicemembers, in garrison, have the opportunity to live off post or in on-post quarters providing substantial privacy, the armed forces do not train or deploy in a garrison environment. Gen. Colin Powell, in his capacity as chairman of the Joint Chiefs of Staff, observed:

While some military specialties may gravitate to office type settings no Servicemember is guaranteed a particular assignment in a particular location. We are provided assignments anywhere in the world, often at very short notice, based on the needs of the Army, Navy, Air Force, or Marine Corps. Every military man and woman must be prepared to serve wherever and in whatever capacity the Armed Forces require their skills. Even forward deployed units need cooks and typists.

Military personnel policy reflects the conditions under which servicemembers live while deployed for training or operations. As General Powell has noted:

The majority of our young men and women are required to live in communal settings that force intimacy and provide little privacy. It may be hard to contemplate spending 60 continuous days in the close confines of a submarine; sleeping in a foxhole with half a dozen other people; 125 people all living and sleeping in the same 40 by 50-foot, open berthing area, but this is exactly what we ask our young people to do.

Deployment under such conditions is the reality of service in the armed forces of the United States. Military personnel policy cannot be based on what might work in the white-collar setting of a stateside garrison. Rather, policies must reflect the very real possibility that the soldier who is behind a comfortable desk today might be in a hostile and physically challenging field environment on very short notice.

The Constitutional Responsibility for Establishment of Qualifications for and Conditions of Military Service Is Vested in Congress

The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.

It is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.

Judicial deference to ... congressional exercise of authority is at its apogee when legislative action is under the congressional authority to raise and support armies and make rules and regulations for their governance.


Excerpted from Evolving Military Justice by Eugene R. Fidell and Dwight H. Sullivan. Copyright © 2002 by Eugene R. Fidell and Dwight H. Sullivan. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.


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