Gale Encyclopedia Of American Law 3Rd Edition Volume 7 P8 pdf

public safety outweighs the need for the prophy-
lactic rule protecting the Fifth Amendment’s
privilege against self-incrimination.”
In Elstad the Court held that a second
confession, immediately preceded by the Miran-
da warning, was admissible, although an earlier
statement from the defendant had been obtained
in violation of Miranda. The Court noted that
suppression of a defendant’s statements assumes
a “constitutional violation” but that unwarned
questioning in itself violated only prophylactic
standards laid down to safeguard against such a
violation. Using the reasoning in Tucker the
Court ruled that a noncoercive Miranda viola-
tion will not result in the suppression of the
“accused’s own voluntary testimony.” The im-
plication of Tucker and the two later decisions is
that all types of evidence will not be suppressed
because of Miranda violations.
FURTHER READINGS
Brandt, Charles. 1989. The Right to Remain Silent. New
York: St. Martins.
Graham, Fred P. 1970. The Self-Inflicted Wound: The Warren
Court’s Revolutionary Ruling in Criminal Law. New
York: Macmillan.
White, Welsh S. 2003. Miranda’s Warning Protections: Police
Interrogation Practices After Dickerson. Ann Arbor, MI:
Univ. of Michigan.
CROSS REFERENCES
Criminal Law; Criminal Procedure; Custodial Interro-
gation; Due Process of Law; Right to Counsel.

MIDNIGHT JUDGES
Presidents throughout history have sought to
influence law through their judicial appoint-
ments. However, the skirmish involving the
midnight judges had a much broader significance:
it belonged to a fight that had begun shortly after
the
WAR OF INDEPENDENCE between the leaders of the
new nation. The argument pitted the Federalists
(led by
JOHN ADAMS) against the Republicans (led
by
THOMAS JEFFERSON) over a fundamental problem:
How much power should be given to the federal
government and, in particular, the federal judi-
ciary? The answer would influence the course of
U.S. law for generations to come.
When Adams lost the 1800 election, the nation
was only 24 years old. The Constitution, ratified in
1789, was e ven younge r. For more than tw o
decades, the Federalists and t he Republicans had
argued over their competing visions of strong
federal government versus
STATES’ RIGHTS. The 1800
election crystallized these opposing philosophies.
Adams and the Federalists accused the
Republicans of i ntending to plunder property
and undermine civilized society. On the othe r side,
Jefferson and the R epublicans attacked the
Federalists for trying to subvert the guarantees of

the
BILL OF RIGHTS. The election tipped the balance
of power. With the Republicans capturing the
White House and Congress, it appeared that
Jefferson’s party would at last have the upper hand.
But the Federalists intended to preserve their
power. Just before time ran out on the Adams
administration, they enacted the Judiciary Act of
1801. This sweeping law struck at a key point of
contention: the jurisdiction of the federal courts.
The Republicans wanted the federal courts to be
constrained, but the new law gave these courts
increased jurisdiction over land and
BANKRUPTCY
cases. The federal courts now had greater
authority at the expense of the states. The act
added six new federal circuits with sixteen new
judges. As a final measure, they also added
dozens of new justices of the peace to the District
of Columbia. Between December 12 and March
4, President Adams, with the approval of the
Senate, busily stacked the courts with his own
people. If the Federalists could not control
Washington through elected office, they would
at least dictate the composition of the judiciary.
The Republicans could not tolerate this bold
maneuver. Enraged, Jefferson declared that “the
Federalists have retired into the judiciary as a
stronghold” where his own party’s efforts would
be “beaten down and erased.” Once in power the

Republicans quickly repealed the 1801 act, thus
restoring the original jurisdictional authority of
the federal courts. But removing the midnight
judges presented a difficult constitutional ques-
tion. The Constitution provided that federal
judges were to hold office as long as they
demonstrated good behavior—in effect, for life.
The Republicans’ plan was therefore to abolish
the new circuit courts. The Federalists called this
an unconstitutional attack on the independence
of the judiciary and predicted that the Supreme
Court—which was dominated by Federalists—
would not allow it. The Republican-controlled
Congress stalled a decision on their actions by
eliminating the 1802 term of the Court.
The action only delayed an inevitable ruling.
Fortunately for the Republicans, Adams had to
leave office before he could secure commit-
ments from his appointees, and several declined
to serve. Those who accepted did not manage to
challenge their removal. But one appointment
of a midnight judge had gone largely unnoticed,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
58 MIDNIGHT JUDGES
and it proved to be one of the most important
appointments in U.S. history. This was the
nomination of
JOHN MARSHALL as chief justice of
the Supreme Court. Marshall, who was an
ardent Federalist, viewed President Jefferson as

nothing less than an “absolute terrorist.”
In 1803, when the Court reconvened, it
ruled on a case that arose from Adams’s District
of Columbia appointments. Prevented from
receiving his commission as a
JUSTICE OF THE
PEACE
, William Marbury asked the Court to
order that his commission be honored.
The Court’slandmarkopinionin
MARBURY V.
MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60
(1803), settled the immediate dispute and
partially answered the constitutional question at
stake. Writing for the unanimous Court, Chief
Justice Marshall dismissed Marbury’ssuitonthe
grounds that the Supreme Court lacked jurisdic-
tion. Marshall wanted to avoid an impasse
between the judiciary and the White House.
However, Marshall’s opinion also greatly ex-
panded the power of the Court by holding that
the judiciary has the power to say what the law is,
and, if necessary, to overturn acts of Congress
that it finds unconstitutional. The Court did this
in Marbury for the first time in history, striking
down a section of the
JUDICIARY ACT OF 1789.
The problem of the midnight judges was
settled, but with unexpected results. The judges
appointed by Adams could not take office, and

in this way the Federalists were thwarted. Yet in
an indirect way, they triumphed. Marshall
would serve on the Supreme Court for the next
34 years and in the process become perhaps the
greatest chief justice in history. Moreover, with
his opi nion in Marbury v. Madison, the Court
established its power of
JUDICIAL REVIEW,a
principal goal of the Federalists.
FURTHER READINGS
Lukens, Robert J. 1997. “Jared Ingersoll’s Rejection of
Appointment as One of the ‘Midnight Judges’ of 1801:
Foolhardy or Farsighted,” Temple Law Review 70 (spring).
Stephenson, D. Grier. 1999. Campaigns and The Court: The
U.S. Supreme Court in Presidential Elections. New York:
Columbia Univ. Press.
Streich, Michael. 2008. “Judicial Review & the Marbury
Case.” American History, Suite101.com (October 30).
Available online at />article.cfm/judicial_review_the_marbury_case; website
home page: (accessed
September 7, 2009).
CROSS REFERENCES
Constitution of the United States; Supreme Court of the
United States.
MIGRATORY BIRD TREATY OF 1918
The Migratory Bird Treaty of 1918 between the
United States and Great Britain prohibited the
killing of many species of birds that traverse d
certain parts of the United States and Canada.
Such species were of great value both as a source

of food and because they destroyed insects
injurious to vegetation, but they were in danger
of extermination through lack of protection.
The state of Missouri sought to have the
treaty declared an unconstitutional interference
with the rights that are reserved to the states by
the
TENTH AMENDMENT to the Constitution. In
Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382,
64 L.Ed. 641 (1920), the Supreme Court held
that a valid treaty must prevail over state law,
even if a federal statute on the subject would
be unconstitutional. Acts of Congress are the
supreme law of the land only when made pur-
suant to the Constitution, and treaties are
accorded the same status when made under the
authority of the United States.
MILITARY GOVERNMENT
A government that is established during or after
military occupation by the victorious country in
an armed conflict. According to
INTERNATIONAL
LAW
, the territory that has been placed under the
authority of a hostile army continues to belong to
the state that has been ousted. However, it may be
ruled by the occupiers under a special regime.
When a country’s army achieves decisive
victory over an enemy, the victor may supple-
ment military presence in the enemy territory

with some type of government. If the victor is a
signatory to certain international agreements, it
must follow international
RULES OF WAR that
outline the rights and responsibilities when
governing a territory under belligerent occupa-
tion. This military government is not the same
as
MARTIAL LAW, although the occupi ers may
impose martial law as part of maintaining order.
Certain species of
birds that traverse the
United States and
Canada, including
these snow geese, are
protected by the
Migratory Bird
Treaty of 1918. The
Supreme Court held
that this treaty, and
others like it, must
prevail over state law,
even if a federal
statute concerning the
same matter would be
held unconstitutional.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
MILITARY GOVERNMENT 59

The rules of military government are
established in various international agreements,
primarily the Hague Conference of 1907 and
the Geneva Conference of 1949. These docu-
ments provide guidelines on such topics as
rights and duties of the occupying power,
protection of civilians, treatment of prisoners
of war, coordination of relief efforts, property
rights of the ousted state, and other wartime
and postwar concerns. A country that estab-
lishes a military government and steps beyond
its allotted rights runs the risk of international
censure or criticism. Countries sometimes try to
deny that they have imposed a military govern-
ment. For example, in the Persian Gulf War,
Iraq claimed that Kuwait is an Iraqi province
and therefore not eligible for the protections
given by the law of belligerent occupation.
The
U.S. CIVIL WAR (1861–1865) contributed to
the development of rules for military behavior
and belligerent occupation. The Lieber Instruc-
tions is considered a first attempt to codify the
laws of war as they existed during the Civil War
era. Columbia College Professor Francis Lieber
prepared this list of laws in 1863 at the request of
President
ABRAHAM LINCOLN. They led in part to the
Brussels Conference of 1887 and the Hague
Conferences of 1899 and 1907 on land warfare.

The Lieber Instructions included sections on
military jurisdiction, protection of persons, and
public and private property of the enemy.
The U.S. Civil War pitted the Confederacy—a
group of southern states that wanted to secede
from the United States—against Union forces,
made up of primarily northern and newly formed
states. After the victory of Union forces, the U.S.
government had to decide how to treat the
defeated South. Some vocal members of Congress
insisted that because the Confederate states
had violated the Constitution by seceding, they
had committed “state suicide” and should be
treated like conquered provinces.
These politicians finally got their way in
1867, two years after the war ended. State
governments were abolished in the rebel states,
and the territory was split into five districts,
each commanded by a major general of the
Union army. Gradually public opinion in the
North pushed for home rule for the South, and
by 1870 all southern states were restored to the
Union. President
RUTHERFORD B. HAYES took
office in 1877 and removed the army from the
last three occupied southern states.
By means of the Hague and Geneva
Conferences, and organizations such as the
International Committee of the Red Cross,
the rules of war have evolved beyond those in

the Lieber Instructions. When following these
general rules, victorious countries continue to
have br oad discretion in how they govern con-
quered zones. The United States has used various
approaches to establish postwar governments.
For example, after
WORLD WAR II, the United States
established very different types of governments
to oversee the reconstruction of Germany and
Japan, which were defeated by Allied forces.
After Germany surrendered in World War II,
the country and its capital were each divided into
four zones. Government of the zones was
assigned to four different countries: the United
States, Great Britain, France, and the Soviet
Union. The occupiers differed in their opinions
about what type of permanent government
should follow military occupation, and the zones
occupied by the Soviet Union became communist
East Germany. The other zones became demo-
cratic West Germany. The two Germanys were
reunited in October 1990.
Unlike the military government in Ger-
many, the U.S. occupation of Japan did not
involve a large military presence. After Japan
surrendered, its existing civilian governing
structure was left mostly intact, directed by
General Douglas MacArthur and the Supreme
Command of the Allied Powers (SCAP). During
occupation, Japan—a nation of seventy million

people—was supervised by 600,000 troops,
whose number was soon reduced to 200,000.
During more than six years of U.S. occupa-
tion, the Japanese Diet (legislature) met and
passed laws that were subject to
VETO by SCAP.
The Japanese army and navy were abolished,
weapons were destroyed, 4,200 Japanese were
found guilty of
WAR CRIMES, Shinto was dis-
established as the state religion, and a new
constitution—the “MacArthur Constitution”—
was adopted. SCAP accomplished land reform,
strengthened trade unions, and placed limits on
Japan’s powerful monopolistic corporations.
After World War II the international
community agreed that more safeguards were
necessary to protect civilians and their property
in occupied territories. As a result the Fourth
Geneva Conference was established in 1949 to
tackle these issues.
In more recent times, the United States,
after invading Grenada and Panama, established
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
60 MILITARY GOVERNMENT
a military government in each country during a
brief belligerent occupation.
FURTHER READINGS
Chapman, William. 1991. Inventing Japan: An Unconven-
tional Account of the Post-War Years. Englewood Cliffs,

NJ: Prentice-Hall.
Craven, Avery. 1969. Reconstruction: The Ending of the Civil
War. New York: Holt, Rinehart and Winston.
de Mulinen, Frederic. 1987. Handbook on the Law of War for
the Armed Forces. Geneva: International Committee of
the Red Cross.
Dolan, Ronald E., and Robert L. Worden. 1992. Japan: A
Country Study. Washington, D.C.: Government Print-
ing Office.
Lawson, Gary, and Guy Seidman. 2001. “The Hobbesian
Constitution: Governing without Authority. North-
western Univ. Law Review 95 (winter).
Thomas, David Yancey. 2001. A History of Military
Government in Newly Acquired Territory of the United
States. New York: Columbia Univ. Press. Available on-
line at />thomrich; website home page:
(accessed August 13, 2009).
CROSS REFERENCE
Military Law.
MILITARY LAW
Military law refers to the body of laws, rules, and
regulations that have been developed to meet the
needs of the military. It encompasses service in
the military, the constitutional right s of service
members, the military crim inal justice system, and
the international law of armed conflict.
The Framers of the Constitution vigorously
debated the necessity and advisability of a
standing army. Federalists such as
ALEXANDER

HAMILTON
and JAMES MADISON argued that a
standing army was needed for the maintenance
of a unified defense. Others such as
THOMAS
JEFFERSON
and GEORGE MASON were fearful of
instituting a military establishment that could
be an instrument of governmental abuse. They
argued that the Constitution should prohibit, or
at least limit, the size of the arme d forces. The
opposing sides compromised by approving a
standing army but limiting appropriations for
its support to two-year terms, thereby imposing
a continual check on the military’s activities.
The authority of the government to main-
tain a military and to develop rules and
regulations governing it is found in Article I,
Section 8, of the Constitution, which grants
Congress the power to provide for the common
defense and to raise and support arme d forces.
The U.S.
SUPREME COURT confirmed the legality
of the standing army in Ex parte Milligan (71
U.S.[4Wall.] 2, 18 L. Ed. 281 [1866]). It held that
the Constitution allows Congress to enact rules
and regulations to punish any member of the
military when he or she commits a crime, in times
of war or peace and in any location. The Court
further confirmed the constitutionality of

MARTIAL
LAW
in situations where ordinary law is insuffi-
cient to secure public safety and private rights.
Service in the Military
Congress’s duty to provide for the national defense
is carried out through four basic routes into
military service: enlistment, activation of r eser-
vists,
CONSCRIPTION, and appointment as a n officer.
Typically, military enlistment entails a six-
year service obligation, usually divided between
active and reserve duty. Enlistees agree to abide
by the provisions of the
UNIFORM CODE OF
MILITARY JUSTICE
(UCMJ), obey lawful orders,
serve in combat as required, and accept any
changes in status or benefits brought about by
war or statutory amendments. In return, the
military branch agrees to provide the enlistee
with compensation and to honor promises
concerning assignment, education, compensa-
tion, and support of dependents.
Enlistment is open to persons who are at
least 17 years old and who enter into the
enlistment agr eement voluntarily. It is not
available to declared homosexuals (although
the military may not inquire as to sexual
orientation) or to unmarried parents of children

under 18 years of age. Enlistees are required to
sign the enlistment agreement and, in most
cases, to take the oath of allegiance.
Enlistment in the armed forces creates both
a contractual obligation and a change in the
recruit’s legal status (United States v. Grimley,
137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 [1890]).
Although
PERSONAL SERVICE contracts are gener-
ally not enforceable, the courts recognize the
special legal status of military enlistees and have
required those who breach the enlistment
contract to remain in the service or serve a
prison term. However, after the institution of
the all-volunteer military during the 1970s and
1980s, the courts relied more on traditional
contract law when ruling on breach-of-enlist-
ment suits (Woodrick v. Hungerford, 800 F.2d
1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036,
107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987], and
Cinciarelli v. Carter, 662 F.2d 73, 213 U.S. App.
D.C. 228 [D.C. Cir. 1981], where the courts
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILITARY LAW 61
applied contract law principles and found that the
enlistments in question were void or voidable.)
Reservists or
NATIONAL GUARD members are
civilians who are subject to active service to
execute laws, suppress insurrections, and repel

invasions. Several suits by state governors have
challenged congressional power to call up reser-
vists. In Perpich v. Department of Defense (496 U.S.
334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 [1990]), a
suit by Minnesota’s governor challenging Con-
gress’s authority to call reservists to active duty,
the U.S. Supreme Court confirmed that the
reserve system, under which members serve in
both the state National Guard and the federal
National Guard, is a necessary and proper exercise
of Congress’s power to raise and support armies.
Conscription, also known as the draft, is
another route by which individuals are inducted
into military service. The draft was the primary
means of filling the ranks of the military from
WORLD WAR I through WORLD WAR II,theKOREAN
WAR
, and the VIETNAM WAR. Although many cases
challenged the constitutionality of conscription,
the U.S. Supreme Cour t has consistently held
that Congress’s power to conscript Americans
for military service is “beyond question”
(United States v. O'Brien, 391 U.S. 367, 88 S.
Ct. 1673, 20 L. Ed. 2d 672 [1968]). Deferments
and exemptions from the draft were granted for
certain physical, mental, and religious reasons,
or where induction would cause an undue
hardship on the draftee or the draftee’s family.
The draft was abolished in 1972.
The final method of entry into the military

is through appointment as an officer. Officer
appointments are governed by the appoint-
ments clause of the Constitution (Art. II, Sec. 2,
Cl. 2). Officers are appointed to a rank within a
specific branch of the service.
Most military personnel serve their entire
tour of duty and are discharged without any
complications. An honorable discharge must be
issued when a service member’s record reflects
acceptable military conduct and performance of
duty (32 C.F.R. pt. 41, app. A). An honorable
discharge cannot be denied without
DUE PROCESS
OF LAW
(United States ex rel. Roberson v. Keating,
121 F. Supp. 477 [N.D. Ill. 1949]). A general
discharge under honorable conditions may be
issued when the service member’srecorddoes
not warrant an honorable discharge because of
ineptitude, defective attitude, or apathy (32 C.F.R.
pt. 41, app. A).
A discharge under other than honorable
conditions may be issued under certain circum-
stances indicating that a service member’sbehavior
is inconsistent with conduct expected of military
personnel (32 C.F.R. pt. 41, app. A, pt. 2). In most
cases, the service member must be notified and
given an opportunity to request review of the
discharge by an administrative review board.
Bad-conduct and dishonorable discharges

are punitive discharges that may be issued only
after a full
COURT-MARTIAL. Each results in loss of
veterans’ benefits and, in some cases, loss of
CIVIL RIGHTS.
In addition to discharges, separations from
military service may be accomplished through
administrative proceedings (10 U.S.C.A. § 1169).
The Department of Defense outlines the rea-
sons, guidelines, and procedures for adminis-
trative separation (32 C.F.R. pt. 41, app. A).
Administrative separation may be allowed to
permit a service member to pursue educational
opportunities or to accept public office; to
alleviate hardship or dependency; to accommo-
date the demands of pregnancy or parenthood;
to address religious concerns or conscientious
objections; or to address physical and mental
conditions that interfere with an assignment or
the performance of duty.
Administrative separation may be initiated
when a service member is found to have
engaged in homosexual conduct. The National
Defense Authorization Act for Fiscal Year 1994
(Pub. L. No. 103-160, Nov. 30, 1993, 107 Stat.
1547) states: “The presence in the armed forces
of persons who demonstrate a propensity or
intent to engage in homosexual acts would
create an unacceptable risk to the high stan-
dards of morale, good order and discipl ine, and

unit cohesion that are the essence of military
capability.” The courts have consistently upheld
the congressional prerogative to discharge homo-
sexuals from the military.
During the 1980s, the military discharged
service members for homosexual orientation as
well as homosexual conduct. In 1993, President
BILL CLINTON attempted to change the military’s
policy of discharging gays and lesbians because
of their sexual orientation. He struck a
compromise with those who were opposed to
changing the policy in the National Defense
Authorization Act of 1994, which requires sepa-
ration from service of individuals who volun -
tarily declare their homosexuality, but bars
military personnel from inquiring into a service
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
62 MILITARY LAW
member’s sexual orientation. This became
known as the don't-ask-don't-tell policy.
Two administrative bodies review military
discharges: the Discharge Review Board and the
Board for Correction of Military Records. Service
members also may seek
JUDICIAL REVIEW of a
discharge, but the courts generally require
exhaustion of administrative remedies before
they will accept jurisdiction over a discharge
review (Seepe v. Department of Navy, 518 F.2d 760
[6th Cir. 1975],andWoodrick v. Hungerford, 800

F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S.
1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987]).
Rights of Service Members
In the past, some legal analysts contended that
those in the military receive a level of
constitutional protection that is inferior to that
afforded to civilians. However, in United States
v. Stuckey (10 M.J. 347 [1981]), the Court of
Military Appeals (later called the U.S. Court of
Appeals for the
ARMED SERVICES) held that “the
BILL OF RIGHTS appli es with full force to men and
women in the military service.”
Congress, under its authority to regulate the
armed forces, generally determines the due
process and EQUAL PROTECTION rights of service
personnel, and most courts defer to congressio-
nal authority in this area. However, the U.S.
Supreme Court has made it clear that Congress
must heed the Constitution when it enacts
legislation that concerns the military.
Because both the
FIRST AMENDMENT and the
authority to regulate the military are found in
the Constitution, a balance must be struck
between First Amendment freedoms and the
needs of the military. For example, Article 88 of
the UCMJ makes it a crime for a commissioned
officer to use contemptuous words against the
president, vice president, Congress, and other

government officials. Although this probably
would be a violation of First Amendment
FREEDOM OF SPEECH outside the military context,
constitutional challenges to Article 88 have
consistently failed. In United States v. Howe
(37 C.M.R. 555 [A.B.R. 1966]), reconsideration
denied (37 C.M.R. 429 [C.M.A. 1967]), a second
lieutenant was convicted of violating Article 88
when he participated in an antiwar demonstration
in which he carried a sign derogating President
LYNDON B. JOHNSON. The court allowed his
conviction to stand, even though he was off duty
and wearing civilian clothes at the time of the
demonstration. Similar limitations on the speech
of enlisted personnel have been upheld as well.
Military personnel are entitled to certain
rights and benefits by virtue of their service.
They retain the right to vote and participate in
the election of the government. For income and
property tax purposes, they retain the domicile
in which they reside at the time of enlistment
and cannot be taxed by other states where they
may be stationed. The Soldiers and Sailors Civil
Relief Act Amendments of 1942 (SSCRA) (50
U.S.C.A. app. §§ 514–591) protects military
personnel from legal or financial disadvantage
that results from their being ordered to active
duty. A variety of remedies to alleviate hardship
are available under the SSCRA, including stays
of civil proceedings; stays of execution of judg-

ments, attachments, or garnishments; protection
against foreclosures on real or
PERSONAL PROPERTY;
a cap on interest rates charged on obligations
incurred before active duty; and protection
against evictions.
The Uniform ed Services Employment and
Reemployment Rights Act of 1994 (38 U.S.C.A.
§§ 4301 et seq.) requires employers to rehire
former employees who serve in the military for
five years or less, with certain exceptions. The
act also protects insurance, pension, and fringe
benefits. The Veterans’ Preference Act (1944)
(5 U.S.C.A. §§ 2108 and 3309–3320) grants an
employment preference to certain veterans and
their survivors and enhances their job security.
Veterans also receive education benefits
under the Post-Vietnam Era Veterans’ Educa-
tional Assistance Program (1976) (38 U.S.C.A.
ch. 32) and the New
GI BILL (1987) (38 U.S.C.A.
ch. 30). Education benefits are granted to spouses
and dependent children of certain veterans in the
Survivors’ and Dependents’ Educational Assis-
tance Act (38 U.S.C.A. § 3501). Finally, most
veterans are eligible for assistance in purchasing a
home under a federal lender-guarantee program
that lowers the mortgage interest rate and down
payment that a veteran must pay (38 U.S.C.A.
§ 3710).

Under some circumstances, military per-
sonnel may seek compensation from the federal
government for injury or death that occurs
during service under the
FEDERAL TORT CLAIMS ACT
(28 U.S.C.A. §§ 2675). The most notable
exceptions under the act are claims that arise
out of combat during time of war and claims
that arise while the service member is in a
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILITARY LAW 63
country outside the United States. In addition,
the Military Claims Act (10 U.S.C.A. § 2733)
provides an administrative remedy for those
who incur damage to, or loss of, property,
PERSONAL INJURY, or death caused by a civilian
employee or a member of the armed services.
The Military Claims Act addresses injuries that
are not covered by the Federal Tort Claims Act.
Military Criminal Justice System
The military justice system is the primary legal
enforcement tool of the armed services. It is
similar to, but separate from, the civilian criminal
justice system. The Uniform Code of Military
Justice, first enacted in 1950, is the principal body
of laws that apply to members of the military.
Military tribunals interpret and enforce it.
There are several rationales for a separate
military justice system. The system’s procedures
are efficient and ensure swift and certain

decisions and punishments, which are essential
to troop discipline. By comparison, the civilian
criminal justice system can be cumbersome and
slow and may yield unanticipated or inconsistent
results. Speedy trials and predictable decisions aid
the military in its effort to maintain order and
uniformity. This, in turn, contributes to national
security. In addition, the court-martial system
fulfills the civilian public’s expectation of a
disciplined and efficient military.
In addition to enhancing discipline, order,
uniformity, efficiency, and obedience, the
UCMJ addresses certain offenses that are unique
to the military, such as desertion, insubordina-
tion, or absence without leave. Finally, the
military requires a uniform system that can be
administered at the location of the crime to
adjudicate offenses committed by service mem-
bers outside U.S. jurisdiction.
The jurisdiction of the military courts is
established when the court is properly con-
vened, the membership of the court satisfies the
requirements of the UCMJ, the court has the
power to try the accused, and the offense is
addressed in the UCMJ. The UCMJ provides
that military courts have jurisdiction over all
members of the armed services and certain
civilians who meet limited, well-defined criteria.
The three tiers of military courts are courts-
martial, Courts of Criminal Appeals, and the

United States Court of Appeals for the Armed
Services.
Courts-Martial The three types of courts-
martial—summary, general, and special—
comprise the trial level of the military justice
system. Courts-martial were originally autho-
rized by an amendment to the
ARTICLES OF WAR
(Act of March 3, 1863 , ch. 75, sec. 30, 12 Stat.
736). The amendment gave courts-martial
jurisdiction over military personnel in times of
war, insurrection, or rebellion to prosecute such
crimes as
MURDER, ROBBERY, ARSON, BURGLARY,
RAPE, and other common crimes. The UCMJ
authorizes military command ers to convene
courts-martial on an ad hoc basis to try a single
case or several cases of service members who are
suspected of having violated the code.
Summary Courts-Martial Summary courts-martial
adjudicate minor offenses. Their jurisdiction is
limited to enlisted personnel. Summary courts-
martial may impose a sentence of confinement
for not more than one month, hard labor with-
out confinement for not more than 45 days,
restriction to specified limits for not more than
two months, or
FORFEITURE of not more than two-
thirds of one month’s pay (UCMJ art. 20, 10 U.S.
C.A. § 820). Although the summary court-

martial is intended to dispose of petty criminal
cases promptly, it must fully and fairly investigate
both sides of the case. Nevertheless, the protec-
tions guaranteed in special or general courts-
martial are diminished in a summary hearing.
Therefore, a summary court-martial may be
conducted only with the consent of the accused.
The
DEFENDANT in a summary court-martial
may consult with military counsel before trial
but is not entitled to military defense counsel
at the hearing. A summary court-martial is
presided over by a single commissioned officer
who conducts the trial with minimal input from
adversarial counsel and acts as judge, fact finder,
and counsel. Thus, a summary court-martial is
more similar to the inquisitorial courts of the
civil-law system than to the Anglo American
adversarial model. Summary courts-martial are
employed less frequently than are other types of
courts-martial. With increased recognition of
the constitutional rights of the accused during
the last part of the twentieth century, their use
has greatly diminished.
Special Courts-Martial A special court-martial
generally consists of a military judge and at
least three armed-service members. However,
under Article 16(2) of the UCMJ (10 U.S.C.A.
§ 816[2]), the members may sit without a judge,
or the accused may choose to be tried by a judge

alone.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
64 MILITARY LAW
The military-judge position was authorized
by the Military Justice Act of 1968 (UCMJ art.
26, 10 U.S.C.A. § 826). The military judge ’s role
is similar to that of a civilian trial judge. Military
judges do not determine penalties and may only
instruct the members of the court, who act as a
jury, as to the kind and degree of punishment
that the court may legally impose, unless the
accused elects to have the judge sit as both judge
and jury. This dual role is pe rmissible only in
non-capital cases. In any case, the judge rules on
all leg al questions.
The UCMJ requires that service members
who are selected for the special court-martial be
the best qualified to serve, as measured by their
age, education, training, experience, length of
service, and judicial temperament.
Special courts-martial have jurisdiction over
most offenses under the UCMJ and may impose
a range of sentences, including confinement for
no longer than six months; three months of
hard labor without confinement; a bad-conduct
discharge; forfeiture of pay not to exceed two-
thirds of monthly pay; withholding of pay for
no more than six months; or a reduction in
rank (UCMJ art. 19, 10 U.S.C.A. § 819).
General Courts-Martial The general court-

martial is the most powerful trial court in the
military justice system. A general court-martial
is presided over by either a military judge and at
least five service members, or a judge alone if
the accused so requests and the case involves a
non-capital offense (UCMJ art. 16[1], 10 U.S.C.A.
§816[1]). General courts-martial may try all
offenses under the UCMJ and may impose any
lawful sentence, including the death penalty,
dishonorable discharge, total forfeiture of all
pay and allowances, and confinement. General
courts-martial have jurisdiction over all persons
who are subject to the UCMJ.
A general court-martial may be convened
only by a high-ranking official, such as the
president, the secretary of a military branch, a
general, or a commander of a large unit or
major installation. The commander of a smaller
unit may only convene a speci al court-mar tial.
Trial attorneys who are appointed to represent
the accused in a general court-martial must be
certified military lawyers. Verbatim recordings
of general courts-martial are required by the
Rules for Court-Martial.
The constitutionality of the court-martial
system has been upheld in a number of cases
under the theory that the military constitutes a
separate society that requires its own criminal
justice system. The U.S. Supreme Court has
consistently deferred to the authority of the

military, as conferred by Congress, to govern its
members. In Solorio v. United States (483 U.S.
435, 107 S. Ct. 2924, 97 L. Ed. 2d 364 [1987]),
the Court held that “Congress has primary
responsibility for the delicate task of balancing
the rights of servicemen against the needs of the
military [W]e have adhered to this principle
of deference in a variety of contexts where, as
here, the constitutional rights of servicemen
were implicated.”
Courts of Criminal Appeals The intermediate
appellate courts in the military justice system
are the four Courts of Criminal Appeals (CCA),
one for each branch of the armed services (i.e.,
the Army, Navy, Air Force, and Marines).
Before 1995, these courts were called the Courts
of Military Review (CMR).
The Military Justice Act of 1968 (10 U.S.C.A.
§ 866) established the CMR to review court-
martial convictions. They generally have three-
judge panels that review all cases in which the
sentence exceeds one year of confinement,
involves the dismissal of a commissioned officer,
or involves the punitive discharge of an enlisted
person (UCMJ art. 66, 10 U.S.C.A. § 866). Courts
of Criminal Appeals may review findings of fact
and findings of law and may reduce the sentence,
dismiss the charges, or order a new trial.
Review by the CCA is mandatory and
automatic in cases where the sentence is death,

dismissal, dishonorable or bad-conduct dis-
charge, or imprisonment for one year or more,
and the right to appellate review has not been
waived or an appeal has not been withdrawn.
CCA judges may be commissioned officers or
civilians, but all must be members of a bar of a
federal court or of a state’s highest court. The
judges are selected by the
JUDGE ADVOCATE general
of the appropriate service branch. CCA judges do
not have tenure or fixed terms. They serve at the
pleasure of the judge advocate general. Decisions
of the CCA are subject to review by the United
States Court of Appeals for the Armed Forces.
U.S. Court of Appeals for the Armed
Forces Congress established the U.S. Court of
Appeals for the Armed Forces (USCAAF),
formerly known as the Court of Military
Appeals (CM A), in 1950 (10 U.S.C.A. § 867).
It is the highest civilian court that is responsible
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILITARY LAW 65
for reviewing decisions of military tribunals. It
is exc lusively an appellate criminal court. The
court consists of three civilian judges appointed
by the president, with the advice and consent of
the
SENATE, to serve 15-year terms.
The USCAAF has jurisdiction over all cases in
which the death penalty is imposed, all cases sent

by the judge advocate general for review after
CCA review, and certain appeals petitioned by the
accused that the court agrees to review. The court
may only review questions of law. Decisions of
the USCAAF may be appealed to the U.S.
Supreme Court, which may grant or deny review.
Jurisdictional Questions Involving Military
Courts On a number of occasions in U.S.
history, the jurisdiction of military courts has
come into question. Congress resolved many of
these disputes through legislation, the most
significant of which was the Uniform Code of
Military Justice. Although military courts gen-
erally have powers that are analogous to those of
their counterparts in the civilian system, they
are subject to limitations in the federal laws
creating them.
The U.S. Supreme Court resolved a major
jurisdictional question involving the military
courts in Clinton v. Goldsmi th (526 U.S. 529,
119 S. Ct. 1538, 143 L. Ed. 2d 720 [1999]). The
Court ruled that the USCAAF did not have
the authority to issue an
INJUNCTION preventing
the U.S. Air Force from dropping a convicted
officer from its rolls. The decision made clear
that the president has the power to fire military
personnel for the same offenses that resulted in
their courts-martial and convictions.
In 1996 Congress passed legislation that

expanded the president’s authority over the
military. The president was empowered to drop
from the rolls of the armed forces any officer who
had been sentenced by a court-martial to more
than six months’ confinement and who had
served at least six months. The case in Goldsmith
arose when an Air Force major, who was HIV-
positive, continued to have unprotected sex after
a superior had ordered him to inform his sexual
partners of his disease. When the officer had sex
with two partners, including a fellow officer and a
civilian, he was convicted by a court-martial of
willful disobedience of an order from a superior
officer and two other related charges.
The officer appealed his conviction to
the Court of Criminal Appeals and, later, the
USCAAF, seeking an injunction to prevent the
president and the Air Force from dropping
the officer from the Air Force rolls. Although
the CCA refused, indicating that it lacked
jurisdiction, the USCAAF issued the injunction.
A unanimous U.S. Supreme Court, per Justice
DAVID H. SOUTER, ruled that the USCAAF lacked
this form of injunctive power. According to the
Court, the USCAAF authority is limited to the
review of sentences imposed by courts-martial
and appellate dec isions by the Court of Crimi-
nal Appeals.
Law of Armed Conflict
The INTERNATIONAL LAW of arme d conflict applies

to situations involving an armed, hostile conflict
that is not a civil or internal matter.
An armed conflict may begin by declaration
of war, by the announcement of one governmen-
tal entity that it considers itself at war with
another, or through the commission of hostile
acts by the military forces of one entity against
another. In the past, a formal declaration of
hostilities was required before a conflict was
legally interpreted as a war. Thus, in Savage v. Sun
Life Assurance Co. (57 F. Supp. 620 [W.D. La.
1944]), the court found that the insured, who
died in the Japanese attack on Pearl Harbor, had
not died as a result of war because the United
States had not yet formally declared itself at war
with Japan. Rather, the court found that the
insured’s death was accidental and that his
BENEFICIARY could collect DOUBLE INDEMNITY under
an accidental death policy. In modern times, the
outbreak of hostilities even without a formal
declaration or ultimatum is regarded as war in a
legal sense, unless both parties deny the existence
of a state of war.
Armed conflict may be terminated by a
peace treaty, a cessation of hostilities and
establishment of peaceful relations, uncondi-
tional surrender, or subjugation.
The United States, as a member of the
UNITED NATIONS, is bound by the U.N. Charter,
which requires that its members refrain from

the threat or use of force in any manner that is
not consistent with U.N. policies. In addition,
the United States is a signatory to most major
treaties relating to warfare, including the Hague
Conference of 1907, the Geneva conferences of
1929 and 1949, and the
GENOCIDE Convention of
1948. All of these treaties set forth basic
principles that govern the conduct of war:
Force should be directed only at targets that are
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
66 MILITARY LAW
directly related to the enemy’s ability to wage
war (military necessity); the degree of force used
should be directly related to the importance of
the target and should be no more than is
necessary to achieve the military objective
(proportionality); and the force used should
cause no unnecessary suffering, destruction of
civilian property, loss of civilian life, or loss of
natural resources (humanitarian principle). In
addition, the Hague Conference provided that
captured prisoners may not be killed; captured
towns may not be pillaged; and the property,
rights, and lives of civilians in armed conflict
areas must be respected.
In addition to written treaties relating to war,
international armed conflict is governed by
customary international law, or the
COMMON LAW

of armed conflict. Under this constantly evolving
body of law, certain conduct is proscribed
because world opinion forbids it. In Ex parte
Quirin (317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 [1942]),
order modified by (63 S. Ct. 22), the Court upheld
jurisdiction of a military tribunal over German
saboteurs who used civilian disguises, even
though no written law or treaty justified their
trial. The Court based its decision on the ground
that infiltration by disguise violated the custom-
ary law of armed conflict (see also The Paquete
Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed.
320 [1900]). The customary law of war is based
on the same principles embodied in the Hague
Conference and subsequent treaties and reflects
international agreement that actions that are
inconsistent with those principles should not go
unpunished even in the absence of express
prohibitions. Many nations, including the Unit-
ed States, have codified significant portions of
the common law of armed conflict (see U.S.
Department of the Army, The Law of Land
Warfare [Field Manual 27-10, 1956].)
In response to the
SEPTEMBER 11, 2001, ATTACKS
when terrorists hijacked four U.S. planes and
used them to destroy the World Trade Center in
New York and seriously damage the Pentagon,
President
GEORGE W. BUSH initiated his WAR ON

TERRORISM
. As part of this military action, Bush
signed a military order on November 13, 2001,
that, among other provisions, authorized the
United States to try suspected terrorists before a
military tribunal, rather than before a federal
district court.
The order authorized the secretary of
defense to establish military commissions, along
with special rules governing procedures, evi-
dence, and other matters. The
DEFENSE DEPART-
MENT
issued regulations in 2002. Many of the
provisions in the regulations were similar or
analogous to rules that apply in the civilian
courts but evidentiary standards were changed
to favor the prosecution. As the United States
engaged in military action in Afghanistan,
most suspected members of the Taliban regime
and the al-Qaeda organization were held at a
special detention facility at Guantanamo Bay in
Cuba.
The legality and constitutionality of the
military commission regulations and proce-
dures were challen ged by military defense
lawyers in federal court. The U.S. Supreme
Court overturned the procedures promulgated
by the Defense Department in 2006, and later
threw out a 2006 federal statute that sought to

retain much of the executive order’s procedures.
The first trial of a Guantanamo Bay prisoner
was held in 2008. The commission convicted
Salim Hamdan, the driver of Osama Bin Laden,
for providing material support for
TERRORISM.In
2009 the Obama administration announced
that it would move the detainees to the United
States and would revise the military commission
rules. Moreover, the administration planned to
try as many detainees as possible in the federal
courts. However, as of October 2009, it was
unclear when such changes would begin.
FURTHER READINGS
Bishop, Joseph W., Jr. 1974. Justice under Fire: A Study of
Military Law. New York: Charterhouse.
Denbeaux, Mark, and Jonathan Hafetz. 2009. The Guanta-
namo Lawyers: Inside a Prison outside the Law. New
York: NYU Press.
Falvey, Joseph L. 1995. “United Nations Justice or Military
Justice.” Fordham International Law Journal 19.
Gilligan, Francis A. 1990. “Civilian Justice v. Military
Justice.” Criminal Justice 5 (summer).
U.S. Department of Defense. 2008. Manual for Courts-
Martial Washington, D.C.: Department of Defense.
Wiener, Frederick B. 1989. “American Military Law in the
Light of the First Mutiny Act’s Tricentennial.” Military
Law Review 126 (fall).
Winthrop, William. 2000. Military Law and Precedents.
Buffalo, N.Y.: William S. Hein & Co., Inc.

CROSS REFERENCES
Arms Control and Disarmament; Conscientious Objector;
Gay and Lesbian Rights; Geneva Conventions, 1949;
Genocide; GI Bill; Just War; Military Government; Military
Occupation; Militia; Nuremberg Trials; Rules of War;
Selective Service System; Solomon Amendment; Veterans
Affairs Department; War; War Crimes.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
MILITARY LAW 67