MILITARY JUSTICE: CONSIDERATION of an ARCHAIC SYSTEM and POSSIBLE REFORM
Article I Section 8 of the United States Constitution grants Congress the power to “make rules for the government and regulation of the land and naval forces.”[i] With this grant of power, Congress created the Uniform Code of Military Justice (UCMJ) exercised through the creation of American Military Courts-Martial.[ii]
Unbeknownst to many Americans, military personnel are held to laws that are not founded on the traditional common law system. Soldiers can be punished for behavior that has little to no consequence in normal civilian society. Conduct such as adultery, dueling, and “conduct unbecoming of a gentleman or an officer” are all punishable crimes in a military court-martial.[iii]
The court-martial process is also one unparalleled by the common law justice system taught in American law schools. Many scholars are concerned that the UCMJ affords soldiers less due process rights than a typical civilian in a federal or state court.[iv] Among these “reduced rights” are limited safeguards against command bias and the potential for false conviction through what is known as “unlawful command influence.” The system is extremely hierarchical in the sense that all panel members of the court-martial “jury” are under the control of the commander.[v] This system leads critics to believe that the panel members will choose to convict the defendant based on the knowledge that the commander brought the charges against him and thus wanted the accused to be convicted.