Military Law Background
Military law (military justice) is the branch of the law that regulates a government's military establishment. It is entirely penal or disciplinary in nature and, in the United States, includes and is analogous to civilian criminal law. Its sources are many and varied, some considerably antedating the United States and its Constitution. However, since it is through the Constitution that our Public Law began to exist, the Constitution can properly be considered the primary source of the law governing our military establishments. Along with the Constitution, there are other sources, both written and unwritten, that govern the military as well: International law contributed the law of war and numerous treaties affecting the military establishment; Congress contributed the Uniform Code of Military Justice (UCMJ) and other statutes; Executive orders, including the Manual for Courts-Martial (MCM), service regulations; usages and customs of the Armed Forces and of war; and, finally, the court system has contributed its day-to-day decisions to clarify the gray areas. All of these make up our military law.
The US Constitution. The constitutional source of military law stems from two provisions: those vesting certain powers in the legislative branch and those granting certain authority to the executive branch. In addition, the fifth amendment recognizes that offenses in the Armed Forces will be dealt with in accordance with military law.
Powers Granted to Congress. Under Section 8 of Article I, US Constitution, Congress is empowered to:
- define and punish offenses against the law of nations
- declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water
- raise and support armies
- provide and maintain a navy
- make rules for the government and regulation of the
- land and naval forces
- provide for calling forth the militia
- provide for organizing, arming, and disciplining the militia and for governing such part of them as may be employed in the service of the United States; and
- in general, make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof.
Authority Vested in the President. Under the Constitution, the President serves as Commander in Chief of the Armed Forces of the United States, and, when called to Federal service, the President also serves as Commander in Chief of various state militias. The Constitution also empowers the President, with concurrence of the Senate, to appoint the officers of the services. The President commissions all officers and has the duty to see that the laws of this country are faithfully served.
The Fifth Amendment. In the fifth amendment, the framers of the Constitution recognized that cases arising in the military services would be handled differently from cases arising in civilian life. The fifth amendment provides, in part, that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger."
International Law. The law of armed conflict is the branch of international law that prescribes the rights and obligations of combatants, noncombatants, belligerents, and prisoners. It consists of those principles and usages that, in time of war, define the status and relations not only of enemies, but also of persons subject to military control.
