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

  • Don't Worry About KRACK October 16, 2017 KRACK–the vulnerability in the WPA2 security protocol proven this morning–is an interesting and amusing vulnerability from a technical standpoint and a great lesson in how our computer security is "dancing madly on the lip of a volcano". It…
  • Disability Compensation for Military Sexual Trauma October 16, 2017 A topic that is rather difficult to discuss is military sexual trauma. Some veterans may have experienced sexual trauma while serving in the military. Veterans who have experienced this, often have issues concerning their mental and physical health.…
  • A Primer on Microsoft Ireland, the Supreme Court's Extraterritorial Warrant Case October 16, 2017 The Supreme Court announced this morning that it will grant the Department of Justice's petition for a writ of certiorari in its dispute with Microsoft over access to emails stored on the company's Irish servers. The crux of the dispute is the…
  • Breaking WPA2 October 16, 2017 Sometimes we are reminded that the "noise" of policy drowns out important practical news. Today is one of those days. While we sit around worrying about Harvey Weinstein and Trump's latest tweet, it turns out that the encryption protocol…
  • Today's Headlines and Commentary October 16, 2017 Iraqi forces seized key positions in the disputed city of Kirkuk, pushing out Kurdish forces, Reuters reported. The U.S.-trained counterterrorism force took up positions outside the provincial government headquarters on Monday afternoon, less than 24…