Military Law

What is military law?

Military law is the body of law that governs the members of the armed forces. The application of military law to members of the military reflects a recognition that such individuals are subject to different duties and expectations than civilian citizens.

Can military law apply to civilians?

Military law can be applied to civilians, but only in special circumstances. If a nation declares "martial law," military authority replaces civilian authority. Under martial law, the military operates the police, courts, and legislature instead of the civilian government.

Some argue that martial law has been declared at times during United States history, most famously during the Civil War after Congress and President Lincoln suspended habeas corpus, a legal procedure used to challenge detention. However, the Supreme Court rejected an argument that martial law was in place during the Civil War (Ex Parte Milligan, 1 U.S. 2) (4. Wall) (1866) (holding a military commission lacked authority to try an alleged Confederate sympathizer due to the absence of martial law, which only could occur where war actually forces closure of civilian courts). Debate continues over which branch of government has authority to declare martial law: i.e., whether the President as Commander-in-Chief of the military (U.S. Const. Art. II § 2) or Congress, which is the sole body of government with the power to suspend the writ of habeas corpus as granted by the Constitution (Art. I § 9), may declare martial law.

Absent a declaration of martial law, United States civilians cannot be prosecuted under a system of military law (Reid v. Covert, 354 U.S. 1) (1957) (holding unconstitutional the trial by military court of a civilian woman for murdering her husband in the military).

What is the system of military law?

United States military law is found in the Uniform Code of Military Justice (UCMJ), Title 10 of the United States Code. It establishes military legal rules and procedures applicable to individuals in the military. The military law embodied in the UCMJ applies to the armed services at home and abroad, active and non-active. The coverage of the law is extensive, ranging from insubordination to theft. Additionally, the UCMJ implements many international laws of war which apply during an armed conflict.

The UCMJ establishes a separate military court system, the "courts-martial," in which trials involving military service personnel take place. Executive orders published in the Manual for Courts-Martial implement the provisions of the UCMJ on courts-martial. Various forms of military tribunals and commissions comprise the courts-martial system. The three most common forms of military tribunals are found in the UCMJ: General Courts-Martial, Special Courts-Martial, and Summary Courts-Martial.

The President, as Commander-in-Chief, has authority to create military commissions and tribunals. The legal procedures employed by these entities must nevertheless comport with applicable law, such as the Constitution and the UCMJ. Such military commissions and tribunals can conduct proceedings against individuals, including non-United States citizens, charged with violating the laws of war.

LegislationFeed

RegulationsFeed

NewsFeed

BlogsFeed

  • Two new CAAF grants August 22, 2017 CAAF granted review in two cases on Friday. The first is a Navy case: No. 17-0480/NA. U.S. v. Raiden J. Andrews. CCA 201600208. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of…
  • The National Security Law Podcast: Back to the Future...of Afghanistan and GTMO? August 22, 2017 Never a dull moment in 2017. In this week's episode, Professors Vladeck and Chesney take on four topics (well, four relevant topics…do try to stay with them past their musings on home runs at the Little League World Series). First, they unpack…
  • VA Pension – Am I Eligible? August 22, 2017 VA Pension is different from VA Disability Compensation in many ways. Many veterans ask if they can apply for a pension in addition to their disability compensation but they are paid out for different reasons. The pension is limited by income levels…
  • AJIL Online Symposium on Sovereignty in Relation to Cyber Operations August 22, 2017 AJIL Unbound, which supplements the American Journal of International Law's print edition by publishing short, original essays online, today posted a symposium on sovereignty, cyber operations, and the Tallinn Manual 2.0. The symposium includes an…
  • What if President Trump Orders Secretary of Defense Mattis to Do Something Deeply Unwise? August 22, 2017 Plausible hypotheticals sparked by recent events raise the question whether the Secretary of Defense or someone else high up in the chain of command must obey a presidential order he or she deems deeply unwise. May the Secretary of Defense refuse an…