Criminal Justice: The Serviceman's Rights

In the wake of an expanded draft call, thousands of Americans are about to encounter a fact of G.I. life that might flabbergast a veteran of World War II. It is the Uniform Code of Military Justice, which permits U.S. military courts to be reviewed by civilian judges. By virtue of the code, the modern U.S. court-martial gives the accused a fairer shake than he can expect in most U.S. state criminal courts.

Congress enacted the code in 1950 in response to complaints about "drumhead justice" during World War II, when the number of courts-martial hit 750,000 a year. In one sense, the complaints were no surprise; civilian soldiers, whether draftees or volunteers, have made known their distaste for military rules in every U.S. war since the Revolution. But Congress was also aware of the professional soldier's compelling argument that autocracy is a military necessity. As General William Tecumseh Sherman warned in 1879: "An army is a collection of armed men obliged to obey one man. Every change in the rules which impairs the principle weakens the army."

15 Years Ahead. As it tried to bal ance service requirements against civilian complaints, Congress came to the conclusion that military autocracy had indeed gone too far. Investigators found widespread abuse of "command control" —the power of local commanders to convene courts-martial, appoint court members and review court verdicts. The record showed that all too many commanders had been using military courts as personal disciplinary weapons, ignoring even such bedrock rights as the presumption of innocence until guilt is proved beyond reasonable doubt. As one ex-Navy lawyer recalls: "The general attitude seemed to be that a man was going before a court-martial to receive a sentence rather than a trial."

In writing the new code, Congress adroitly retained command control—but so hedged it with restraints that U.S. military courts have quietly adopted many of the most controversial criminal-law rules only recently imposed on state courts by the U.S. Supreme Court. Civilian courts have not yet adopted some rules that have become military practice. The Supreme Court, for example, has yet to say that state police failure to advise a suspect of his rights to counsel and silence invalidates his confession—a requirement that Congress imposed on the military 15 years ago. A military defendant is also entitled to full pretrial "discovery" of all evidence against him—a virtually unheard-of rule in state courts.

Bread & Water. The Uniform Code of Military Justice governs members of all five armed forces and all organizations assigned to them, such as the Public Health Service. It used to govern servicemen's wives and civilian employees outside the U.S., but the Supreme Court (acting on writs of habeas corpus) voided that power in 1957. The code proscribes a wide variety of offenses, ranging from military mutiny to burglary. It authorizes execution (usually hanging) for everything from premeditated murder to wartime desertion, but makes death mandatory only for spying. No military executions have occurred since 1961; the Navy has performed none since 1849.