What is Military Law?

Military law is any law that governs the operation of the U.S. military. Military law is a body of law that’s separate and supplementary to U.S. civil and criminal law. Every service member in the armed forces is subject to military law. In addition to laws that govern the conduct of military officials, there are also laws that help military members transition into civil society after their service. Military law governs military operations and governs the conduct of individuals who serve in the armed forces.

What’s the purpose of military law?

Military law exists in order to help the military operate in an orderly way. Officials believe that military law ensures justice and an appropriate chain of authority in the military. Ultimately, the purpose of military law is to provide justice and strengthen the national security of the United States.

The authority for military law

The authority to make military law comes from the United States Constitution. Article One, Section Eight of the U.S. Constitution allows Congress to regulate the behavior of members of the military. In addition, the United States President may direct the actions of the U.S. military as the commander in chief.

The first set of military regulations produced in the United States is the 1806 Articles of War. The Lieber Code for military justice governed military conduct during the U.S. Civil War. The President authorized the Uniform Code of Military Justice in 1951. It’s still in force today, and it supersedes previous codes for military conduct.

Military law is not martial law

Military law and martial law are different things. Military law is the law that governs the conduct of members of the military. It applies all the time.

Martial law occurs when the military substitutes its own authority for civil governance for everyone in a country. Martial law suspends the ordinary application of civil law and order and allows the military to police civil society. Martial law is not military law.

The Uniform Code of Military Justice

Most of the rules that govern military conduct in the United States come from the Uniform Code of Military Justice (UCMJ). The UCMJ applies to all active service members. There are more than 60 prohibited behaviors under the UCMJ. Supervisors may punish offenders informally, or they may refer offenders to formal court-martial proceedings. Offenses can result in dismissal from the military, incarceration and other penalties.

Commonly charged offenses under the UCMJ include:

adultery
wrongful cohabitation
disorderly/drunken conduct
animal abuse
check fraud
improper fraternization
offenses involving mail
inappropriate language
bribery
failing to pay debt
disloyal statements
theft
endangering a child
obstruction of justice
impersonation
weapons offenses
perjury

Conduct in the military is often more restricted than behavior in the military. For example, adultery may still be illegal in civil society, but it’s rarely prosecuted. Service members who commit adultery may find themselves subject to military discipline. Military service members may be subject to discipline for conduct that’s legal and even socially accepted in civil society.

Other major military laws

In addition to the UCMJ, there are other laws that are a part of military law. The Servicemembers Civil Relief Act protects active law enforcement personnel from certain legal actions while they’re deployed including debt collection actions, adverse mortgage actions and other civil proceedings. In some circumstances, military members may stay family court proceedings like divorce and child custody actions until deployment ends and they can fully participate in the proceedings.

Similarly, the Uniformed Servies Employment and Reemployment Rights Act (USERRA) requires employers to rehire military personnel in certain circumstances after the service member finishes their service. The military member must serve five years or less and receive an honorable discharge. They must give notice of intent to return to their job and reapply within a reasonable period of time after their service.

The Rules for Courts Martial govern procedure rules in U.S. military courts. The Rules for Courts Martial operate as the military counterpart for the Federal Rules of Criminal Procedure. Likewise, the Military Rules of Evidence are the military counterpart to the rules of evidence used in a federal or state civilian court.

The courts martial process

When a military official accuses an service member of an offense, they may institute formal proceedings called a courts martial. There are three types of courts martial proceedings with different procedures depending on the severity of the offense. A jury may hear the case, and the jury is comprised of service members who are senior in command to the accused military member.

A military trial involves the presentation of evidence. The burden of proof is beyond a reasonable doubt. For death-penalty cases, the jury must unanimously agree on guilt. In other cases, the jury may convict by the vote of a two-thirds majority. The accused individual has a right to representation by a military or civilian attorney.

The appeal system

When a courts marital results in a conviction, there’s an appeals process. In many cases, the supervisor that brings the courts martial has the authority to reduce the service member’s sentence or otherwise mitigate the consequences of a conviction. In cases where a courts martial results in a prison sentence of a year or longer, there’s an automatic review of the case.

A convicted service member can also take their case through military appeals to the U.S. Court of Appeals for the Armed Forces (CAAF). The CAAF has five justices that the President appoints to service. An aggrieved party may appeal from the CAAF directly to the U.S. Supreme Court.

Through the courts martial process, the military develops legal precedent and court opinions much like civilian courts. Military case law that interprets and extends the law evolves in military courts just like civilian case law. In fact, advice of rights guarantees similar to civilian Miranda warnings existed in military law for about a decade before the Supreme Court ruled in United States v. Miranda. Miranda warnings are also more expansive in military justice than they are in civilian courts.

How the military handles minor offenses

In addition to courts martial proceedings for serious offenses, there’s also a military law system in place to address minor infractions. The accused individual appears before a hearing without a judge or jury. They may face a reduction in rank, revocation of privileges, extra work duties or reprimands. The military disposes of most minor infractions through these informal proceedings.

Who practices military law?

Military lawyers may be both service members and non-service members alike. Military personnel serve as both prosecutors and defense attorneys during courts martial proceedings. An accused service member has the right to counsel, and the military provides attorneys who are also service members. Many attorneys work as military attorneys for their entire careers. Attorneys in the military accept the assignments they’re given. An attorney serving in the military is called a Judge Advocate General. Military lawyers often enter service immediately after law school.

In addition to appointed defense counsel, an accused service member has the right to civilian representation in a courts martial proceeding. Civilian military attorneys who appear in military courts are often criminal attorneys who practice in both civil and military courts. They often have a practice near a military base. An accused service member may choose to work with both their appointed military defense attorney as well as a civilian attorney of their choice. A civilian attorney may represent their clients in all proceedings in military courts and present a defense to the fullest extent of the law.