Three Observations On Military Law and Society

John T. Willis authored three compelling articles in the early to mid-1970s, as an active duty judge advocate, examining CAAF’s origins and its struggles to establish a constitutional philosophy, and called for continued attention to the military’s supreme court. His first article, The United States Court of Military Appeals: Its Origin, Operations and Future,[1] was “largely descriptive, outlining the power and jurisdiction of the United States Court of Military Appeals [CAAF] and demonstrating the interaction between congressional enactment, executive implementation and judicial decisionmaking.”[2] Calling CAAF the “Supreme Court of the Military,”[3] Willis promulgated three basic observations that any “reasonable discussion of military justice must recognize:”[4]

  • “[U]ntil the passage of the Uniform Code of Military Justice the accepted theory and the acknowledged practice was that defendants before military tribunals were not protected by the Bill of Rights.”[5]
  • “[T]he relationship between the military establishment and the government and the citizens of the United States has dramatically changed since the first articles for the government of the land and naval forces were adopted under the Constitution of the United States. The changes in the nature of warfare, the assumption of world leadership in the twentieth century, and the development of the military-industrial complex have magnified the importance of the military in our country . . . The influence of the military permeates our society and coupled with the growth of concern for individual rights at criminal proceedings and the expansion of court-martial subject matter jurisdiction demands that the traditionally assumed relationship between the Constitution and military tribunals be reexamined.”[6]
  • “[T]he passage of the Uniform Code of Military Justice and the subsequent operation of the Court of Military Appeals has significantly altered the relationship between constitutional guarantees and the military defendant.”[7]

The rest of the article focuses on the legislative history of the UCMJ pertaining CAAF, its organization, and its early efforts to assume a general supervisory role over the administration of military justice in an environment “less than enthusiastic”[8] about its creation. In the end, he concluded by calling for “[f]urther examination of the decisions and structure of [CAAF].”[9]

Willis’ study of CAAF’s early efforts and his call for further research is integral to any military legal history historiography. However, it is his three observations that resonate the most. A former professor of mine, a retired judge advocate, mentioned one day in passing that no one outside the military cares about military justice scholarship (and few inside, for that matter). I never liked that statement, but struggled to articulate why. Willis’ three observations are the fundamental building blocks to understanding military law and legal history and, just as importantly, its relevance and importance to the broader criminal, constitutional, and historical dialogue.

Thinking about Willis’ observations with the benefit of history and the evolution of military jurisprudence, I think the following conclusions can be added:

  • The expansion of court-martial jurisdiction over civilian offenses in time of peace, combined with the civilianization and evolution of military law, provide a reasonable alternative to funneling criminal cases involving military defendants to already overburdened state and federal criminal dockets.
  • The evolution of civil-military relations has resulted in modern society attributing nearly mythological or religious reverence toward military service, in contrast to America’s historical skepticism toward a standing military. Thus, a conviction in a military trial and a resulting punitive discharge not only carries the stigma of a federal conviction, it also carries perhaps an even larger stigma—getting kicked out of the military.[10]

These are preliminary thoughts in progress. In fact, they may be subcategories of Willis’ second observation. However, a specific set of fundamental observations and conclusions can serve as the bedrock foundation for subsequent military legal history scholarship. In the meantime, Willis’ three observations are essential to any study of military law.


 

[1] 55 Mil. L. Rev. 39 (1972). The Court has undergone a number of name changes. In short, however, it began as the Court of Military Appeals and is known today as the United States Court of Appeals for the Armed Forces, or CAAF.

[2] Id. at 92.

[3] Id. at 49.

[4] Id.

[5] Id.

[6] Id. at 49-50.

[7] Id. at 51.

[8] Id. at 71.

[9] Id. at 93.

[10] To read a great book on modern society’s relationship with military society (an ever shrinking percentage of which has any personal knowledge of military society), see Professor Andrew J. Bacevich’s book, A Breach of Trust: How Americans Failed Their Soldiers and Their Country.

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