Military Justice in the Army: The Evolution of Courts-Martial from the Revolutionary War Era to the Twenty-First Century

President Lyndon Baines Johnson signed the Military Justice Act of 1968, on 24 October 1968. In this photograph, taken at the signing event, BG Harold E. Parker, who later became The Assistant Judge Advocate General, is at LBJ’s immediate right. MG Kenneth J. Hodson, The Judge Advocate General, stands next to BG Parker. (Photo courtesy of author)

Military Justice in the Army

The Evolution of Courts-Martial from the Revolutionary War Era to the Twenty-First Century

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By Fred L. Borch III

No one would argue with the statement that military justice in the Army has changed from the last quarter of the eighteenth century, when General George Washington commanded a Continental Army of between 10,000 and 25,000 soldiers, to the first quarter of the twenty-first century, when the American Army consists of an active force of some 475,000 men and women, with thousands more in the Army Reserve and Army National Guard. This article explores that change—or evolution—in military justice over the last 250 years. It shows that changes in military justice can best be described as a transformation that occurred in two phases: “judicialization” and “civilianization.” Judicialization describes how courts-martial became more like courts—a metamorphosis that began during the World War I era. This judicialization was followed by a second phase that is best thought of as civilianization. This phase, which overlapped to some extent with judicialization, was the process by which courts-martial were altered to become more like civilian courts. What follows is the story of how and why this judicialization and civilianization occurred and what it means for the future of the military criminal legal system.

This manual’s publication signaled the Army’s recognition that courts-martial would function better with some guidance for convening authorities and those officers participating in courts-martial.

The Original Practice

In the early years of the Republic, and throughout the nineteenth century, courts-martial were viewed exclusively as a commander’s tool to maintain good order and discipline in his command. This is not to say that courts-martial were unfair or that justice was not done, but rather that the military criminal law system created by the Articles of War1 offered an accused minimal due process. Army criminal law in the early years discouraged any lawyer involvement—especially when it involved advising the accused.

The earliest known example of a court-martial record dates to 1808, and, while it identifies the members of the panel, the judge advocate (JA), the charges and specifications, the questions and answers of the witnesses, the decision of the court, and the action of the convening authority, the record says nothing about how the accused defended himself.2

A record of trial from the following year, however, reveals that there were significant restrictions on the representation of an accused at a court-martial.3 In the general court-martial of Captain W. Wilson, the accused, who was an artillery officer, had the services of a Mr. William Thompson as his individual counsel.4 While Thompson may or may not have had legal qualifications as an attorney, he certainly knew how to conduct a vigorous defense; he examined witnesses, made objections, and read a statement the accused wrote.5

While the panel convicted and sentenced Wilson, the reviewing authority, General James Wilkinson, was exceedingly unhappy with the defense counsel’s participation in the proceedings.6 Consequently, he disapproved the court-martial and wrote the following in his action:

[T]he General [Wilkinson] owes it to the Army . . . not only to disapprove the proceedings and sentence of this general [court] martial, but to exhibit the Causes of his disapproval.

The main points of exception . . . are the admission of Counsel for the defense of the prisoner . . . . Shall Counsel be admitted . . . to appear before General Court-Martial [and] to interrogate, to except, to plead, to teaze [sic], perplex [and] embarrass by legal subtilties [and] abstract sophistical Distinctions?

However various the opinions of professional men on this Question, the honor of the Army [and] the Interests of the service forbid it . . . . Were Courts-Martial thrown open to the Bar, the officers of the Army would be compelled to direct their attention from the military service [and the] Art of War, to the study of Law.

No one will deny to a prisoner, the aid of Counsel who may suggest Questions or objections to him, to prepare his defense in writing—but he is not to open his mouth in Court.7

General Wilkinson’s sentiments in the Wilson trial reflected the prevailing view that courts-martial were courts of discipline and not justice.8 Consequently, permitting lawyers to transform these disciplinary proceedings into law courts was anathema—and would not be tolerated. After all, Article 69 of the Articles of War of 1806 provided what was then thought to be enough to guarantee that the accused received a fair hearing:

The [JA] . . . shall prosecute in the name of the United States, but shall so far consider himself as counsel for the prisoner, after the said prisoner shall have made his plea, as to object to any leading question to any of the witnesses or any question to the prisoner, the answer which might tend to criminate himself . . . .9

It would be many more decades before the Army—and lawyers wearing uniforms—were willing to accept that courts-martial should operate more like courts and that the accused should have a robust—and legally qualified—defense.10 In fact, there was no official Manual for Courts-Martial (MCM) until 1895, when the Army copied a privately printed manual to publish its first procedural guide for the conduct of courts-martial.11 This manual’s publication signaled the Army’s recognition that courts-martial would function better with some guidance for convening authorities and those officers participating in courts-martial. But, it was not until the World War I era that the idea that courts-martial should be more like courts and the process of judicialization began.

Judicialization (1917 – 1969)

The impetus for judicialization occurred in 1917 when several trials by courts-martial convinced The Acting Judge Advocate General, Brigadier General Samuel T. Ansell, that serious deficiencies in the Articles of War required reform; courts-martial needed to be more like courts.

In the fall of 1917, a group of twelve to fifteen enlisted Soldiers at Fort Bliss, Texas, were court-martialed for mutiny when they refused an order to attend a drill formation. The accused, who had been “under arrest” for minor disciplinary infractions when ordered to drill, refused the order because an Army regulation provided that noncommissioned officers (NCOs) under arrest should not attend drill.12 A young officer insisted that the NCOs attend drill and, when they refused to obey the order, he had them court-martialed for mutiny.13 All were found guilty and were sentenced to be dishonorably discharged with jail terms ranging from ten to twenty-five years.14

After the cases were reviewed, approved, and ordered executed by the convening authority, the records of trial in these “Texas Mutiny Cases” were sent to the Office of The Judge Advocate General for review as required by section 1199 of the Revised Statutes of 1878.15 That provision stated that:

[T]he said Judge Advocate General shall receive, revise, and have recorded the proceedings of all courts-martial, courts-of-inquiry, and military commissions, and shall perform other such duties as have been heretofore performed by the Judge Advocate General of the Army.16

It was Brigadier General Ansell’s view that section 1199 gave him the authority to set aside the findings and sentences in the Texas Mutiny Cases based chiefly on his conviction that an Army regulation in fact prohibited enlisted Soldiers “in arrest” from performing drill.17 When Major General Enoch H. Crowder, then-Judge Advocate General who was taking a leave of absence to serve as the Army’s Provost Marshal General, heard that Ansell was attempting to reverse the results of the Fort Bliss courts-martial, he told Secretary of War Newton Baker that section 1199 provided no such authority and that Ansell was wrong.18

While Generals Ansell and Crowder disputed the true meaning of section 1199, a second court-martial, convened at Fort Sam Houston, Texas, brought the Ansell-Crowder controversy into sharper—and much more public—focus.

After the War Department decided to build a training camp near Houston, Texas, a battalion of Soldiers from the all-African-American 24th Infantry Regiment were deployed to act as guards for the construction site. During the summer months of 1917, frequent confrontations erupted between the Black Soldiers and the White residents of Houston.19 From the outset, the Soldiers resented the “Whites Only” signage prevalent in Houston. They also were infuriated by the White townspeople’s use of the N-word, provoking angry responses from the Soldiers. The troopers also came into conflict with the police, streetcar conductors, and other passengers when they refused to sit in the rear of Houston streetcars. The police arrested more than a few Soldiers as a result of these run-ins with local citizens, and beatings or other mistreatment often accompanied these arrests.20

In the immediate aftermath of the Houston Riot cases, General Ansell insisted once again that section 1199 gave him the authority to take “revisionary action on court-martial records.”

On 23 August 1917, White police officers arrested two Black Soldiers for disorderly conduct.21 While they were subsequently released, the rumor back at the training camp was that the police had killed one Soldier.22 Although their battalion commander urged them to remain calm and stay in the camp, the Soldiers were so angry that they took their Springfield rifles and marched toward Houston. When they entered the city, the infantrymen fought a series of running battles with the police, local citizens, and National Guardsmen before disbanding, slipping out of town, and returning to camp.

After about two hours of rioting, fifteen White citizens were dead (including four Houston police officers); some of the dead had been mutilated by bayonets. Eleven other civilian men and women had been seriously injured. Four Soldiers also died. Two were accidentally shot by their fellow troopers. A third was killed after he was discovered hiding under a house after the riots.23

A little more than two months later, on 1 November 1917, a general court-martial convened at Fort Sam Houston began hearing evidence against sixty-three Soldiers who allegedly participated in the Houston riot. All were charged with disobeying a lawful order (to remain in camp), assault, mutiny, and murder. The accused—all of whom pleaded not guilty—were represented by a single defense counsel.24

The trial lasted twenty-two days and the court heard from 196 witnesses.25 The most damning evidence came from the testimony of a few self-confessed rioters, who took the stand against their fellow Soldiers in return for immunity from prosecution. The lone defense counsel (who was not a lawyer) argued that some of the men should be acquitted because they lacked the requisite mens rea required for murder or mutiny.26 He also argued that the Government failed to prove its case beyond a reasonable doubt against some of the accused.27

When the trial finished in early December 1917, the court-martial panel acquitted five accused.28 Of the remaining Soldiers, thirteen were sentenced to be hanged and forty-one were sentenced to life imprisonment.29 Only four Soldiers received lesser jail terms.30

On 9 December 1917, the accused were informed that the convening authority in their court-martial had approved the sentences as adjudged. Two days later, on 11 December 1917, the thirteen condemned men were hanged at sunrise. It was the first mass execution since 1847.31

When the record of trial in the case reached General Ansell, he was outraged. As he later testified before the Senate Committee on Military Affairs:

The men were executed immediately upon the termination of the trial and before their records could be forwarded to Washington or examined by anybody, and without, so far as I can see, any one of them having had time or opportunity to seek clemency from the source of clemency [the convening authority], if he had been so advised.32

In the immediate aftermath of the Houston Riot cases, General Ansell insisted once again that section 1199 gave him the authority to take “revisionary action on court-martial records.”33 He also stressed that the carrying out of thirteen death sentences on 11 December 1917, without any opportunity for the condemned men to ask for clemency or reconsideration, was proof that the War Department must take action to prevent any such future injustice.

As a result of Ansell’s agitation, Secretary of War Newton Baker issued General Orders No. 7 on 17 January 1918.34 It prohibited the execution of any death sentence before a review and a determination of legality by the Judge Advocate General.35 As a result of General Orders No. 7, General Ansell established boards of review, which had duties “in the nature of an appellate tribunal.”36 The boards were tasked with reviewing records of trial in all serious general courts-martial, and, while their opinions were advisory only, the boards of review were the first formal appellate structure in the court-martial process.37 The board may have been a quasi-judicial body, but it was the first step toward judicialization as an appellate court is integral to any judicial system.

While Ansell was pleased with General Orders No. 7, he saw this measure as only the first step of many that were needed to reform the military criminal justice system. Supported by Senator George E. Chamberlain of Oregon, Ansell launched his public campaign for revising the Articles of War, establishing himself as the standard bearer for the judicialization of military justice.38

At the time, the 1916 Articles of War did not clearly define the elements of an enumerated offense, and a court-martial panel had wide discretion when it came to punishing an accused.

His many proposals—some of which were truly revolutionary for the time—included the following: punitive provisions in the Articles of War should be rewritten to define each offense with sufficient particularity; statutory penalties should be specified for each offense; no charge should be referred for trial until the officer with summary court-martial jurisdiction over the accused has made a preliminary investigation of the charge, and has given the accused the right to make a statement or present evidence; and no charge should be referred to trial unless an officer of the Judge Advocate General’s (JAG) Department certified in writing that the charge was legally sufficient and there was prima facie proof of guilt.39

At the time, the 1916 Articles of War40 did not clearly define the elements of an enumerated offense, and a court-martial panel had wide discretion when it came to punishing an accused. Ansell wanted more clarity and specified punishments. As for Ansell’s preliminary investigation proposal, the Articles of War did not require such an inquiry. While it was true that paragraph 76 of the 1917 MCM stated that any charge should be “carefully” investigated prior to referral, this was an MCM provision only and, consequently, the Secretary of War could change it at any time;41 Ansell wanted the requirement to be statutory. As for the last proposal, Ansell wanted to remove the commander as the sole decider as to when there should be a court-martial. He believed that inserting a lawyer into the process would prevent arbitrary and capricious decisions by a commander.42

Other changes proposed by General Ansell included that: general courts-martial would consist of eight members; special courts would have three members; enlisted men would be tried by courts containing enlisted members (three on a general court and one on a special court); the required vote for conviction would be increased from two-thirds to three-quarters, with a unanimous verdict required before a death sentence could be imposed; and a “court judge advocate” (a lawyer from the JAG Department or else an officer specially qualified by reason of legal learning or judicial temperament) would sit with each court-martial and would be akin to a civilian judge (he would rule on motions and questions of law, summarize the evidence and applicable law at the end of a case, and review findings for legal sufficiency, and impose any sentence).43

The idea that enlisted personnel had a place on the panel was truly remarkable, as officer-only panels had been the rule since General Washington first convened courts-martial in the Continental Army during the Revolution. But Ansell thought that the time had come for an enlisted accused to have at least some enlisted members—his peers—sitting in judgment.

Just as revolutionary was General Ansell’s proposal that a court-martial needed a quasi-judicial official—and one who would have the power to impose a sentence. The “court judge advocate” proposal was yet another way to limit the commander’s power in the judicial process. Ansell did not think the existing judgeless court was fair to an accused because the prosecutor-judge advocate—who worked for the commander—performed all the judicial functions. The legally qualified court judge advocate would ensure that the proceedings were fuller and fairer.44 Additionally, by giving the power to sentence an accused to the court judge advocate, Ansell believed that justice would be better served and would move courts-martial away from their focus on discipline at the expense of justice.45

Finally, General Ansell proposed that Congress create a military appeals court of three civilian judges. This Court of Military Appeals (COMA) would consist of lawyers that the President would appoint for life, with the pay and retirement equivalent to a judge on U.S. circuit courts of appeals.46 The COMA would have limited jurisdiction in that it could only hear general courts-martial cases in which the accused had been sentenced to death, a dishonorable discharge or dismissal, or confinement of more than six months.47 Ansell believed that lawyers who were not in the chain of command or otherwise part of the military establishment should be involved in reviewing court-martial convictions. His COMA not only established judicial review of serious courts-martial but also injected civilians into the process. It was a radical proposal given that the 1916 Articles of War contained no appellate structure whatsoever, much less any provision for civilian oversight of the military justice system.

All General Ansell’s proposals were contained in Senator Chamberlain’s legislation to revise the 1916 Articles of War, which Chamberlain introduced in the Senate in early 1919.48 In a Yale Law Journal article of that same year, Professor Edmund Morgan described the reforms as follows:

Obviously the basic principle of the bill is the very antithesis of that of the existing court-martial system. The theory upon which the bill is framed is that the tribunal erected by Congress for the determination of guilt or innocence of a person subject to military law is a court, that its proceedings from beginning to end are judicial, and that questions properly submitted to it are to be judicially determined. As the civil judiciary is free from the control of the executive, so the military judiciary must be untrammeled and uncontrolled in the exercise of its functions by the power of military command.49

The Senate Committee on Military Affairs held hearings on the legislation throughout most of 1919,50 but the Chamberlain bill did not get sufficient traction to become law.

Nonetheless, a few of General Ansell’s reforms did emerge as amendments to the Articles of War in 1920.51 Chief among these was the creation of “law member,” who would be appointed to sit on a general court-martial and who would rule on interlocutory questions and instruct the court on the presumption of innocence and the burden of proof.52 But the law member’s rulings were final only in regards to the admissibility of evidence; in all other matters, a majority vote of the court could overrule him. Another major change was that, for the first time, the Articles of War required The Judge Advocate General to establish boards of review consisting of three or more officers who would review general courts-martial in which a discharge, dismissal, or imprisonment had been imposed at sentencing.53 This statutory change—inserted as Article 50 1/2 of the Articles of War—was the first legislative basis for an appellate court, and consequently was the forerunner of the Army Court of Military Review and Army Court of Criminal Appeals.54

A few of General Ansell’s other proposed reforms were also enacted. A pretrial investigation was now required by law, and the accused was permitted to present evidence at such an investigation.55 The recommendations of the investigating officer, however, were not binding on the convening authority. Additionally, while General Ansell’s idea for enlisted personnel on the court was not enacted, Congress did give clear guidance to the convening authority about the qualities that a court member should possess; for the first time, the Articles of War required the commander to select officer panel members who were best qualified “by reason of age, training, experience, and judicial temperament.”56

Congress rejected the rest of General Ansell’s reform proposals: fixed numbers of members on courts, three-quarters vote required to convict, enlisted personnel on panels, lawyer defense counsel for an accused, and a civilian COMA. Major General Crowder and the War Department had won; Ansell had lost. With Crowder now back as The Judge Advocate General, Ansell was reduced to his permanent rank of lieutenant colonel in March 1919; he resigned his commission and left the Army a short time later.57

General Ansell’s ideas about military justice were not forgotten. His firm belief that there must be more limits on the role of the commander in the system, and that civilians must play a part in the process, were accepted by Congress when it established a three-judge civilian COMA as part of the Uniform Code of Military Justice (UCMJ) in 1950 and when it later created the position of the military judge in the Military Justice Act of 1968.58 Most importantly, the requirement that courts-martial be more like civilian courts was enshrined in Article 36, UCMJ.59 This provision requires that courts-martial mirror, if practicable, the pretrial, trial, and post-trial procedures including modes of proof used in U.S. district courts.60

Civilianization (1950 – Present)

While courts-martial were increasingly becoming like courts, judicialization was not sufficient to counter the uproar about military justice that accompanied the return of citizen-soldiers to civilian life after World War II. Both men and women who served between 1941 and 1945 witnessed a system controlled exclusively by commanders and which could often be arbitrary and capricious. The result was that in the late 1940s, Congress began examining ways to inject more due process into the Articles of War, and it concluded that making courts-martial more like civilian courts would accomplish this goal. This civilianization phase began with the enactment of the UCMJ in 1950, which became effective one year later.

Its major provisions included the following—all of which mirrored practice in Federal civilian courts: any person subject to the UCMJ could prefer charges against another person also subject to the UCMJ, making it more like filing a criminal complaint in civilian court; before changes could be referred to a general court-martial for trial, there had to be “a thorough and impartial investigation” where the accused would have the chance to present evidence and cross-examine witnesses (while not the same as a grand jury proceeding, the idea was the same—that no serious criminal prosecution occur without an investigation); enlisted men could now serve on courts-martial for the first time when the accused was on trial; accused had the right to request that at least one-third of the panel consist of enlisted personnel senior in rank to themselves; accused had the right to legally qualified counsel to defend them at courts-martial (this was a major reform as the Articles of War had no such requirement); and a three-judge civilian COMA was now at the top of the appellate hierarchy in the military justice system (this was another major piece of civilianization in that there was no civilian involvement in courts-martial at any level under the Articles of War).61

In addition to this civilianization, the UCMJ also added more judicialization: every general court-martial now had a “law officer” assigned to it.62 This was not yet the military judge that would come with the Military Justice Act of 1968, but it was yet another step toward making courts-martial more like courts. The law officer had to be a licensed attorney and The Judge Advocate General had to certify them as qualified for duty.63

While the UCMJ was revolutionary in many aspects, Article 36 was arguably its most important provision because its language mandated civilianization of the system in the future. Article 36 read, in part, that courts-martial “shall, so far as . . . practicable, apply the principles of law and rules of evidence generally recognized in the trial of criminal cases in the [U.S.] district courts.”64 This meant that as the law and rules of evidence changed in U.S. district courts, the same change should occur at courts-martial—at least as far as “practicable.”

Eighteen years after the creation of the UCMJ, President Lyndon B. Johnson signed the Military Justice Act of 1968 into law.65 The legislation was the culmination of efforts to amend the UCMJ that had been underway almost as soon as it was originally enacted in 1950. Now, with the reforms ushered in by President Johnson’s signature, courts-martial were about to experience a second revolution in less than twenty years. The first revolution was the creation of a single military criminal code in 1950 that was uniformly applicable to all Services: a remarkable achievement in every respect.66 This second revolution in 1968 was no less remarkable.

Starting in the early 1960s, Senator Sam Ervin of North Carolina, head of the Subcommittee on Constitutional Rights (part of the Senate Judiciary Committee), began hearing complaints from Soldiers about injustices they had suffered under the UCMJ.67 At the time, there was no JA involvement at special courts-martial (line officers served as trial and defense counsel in the proceedings) and more than a few Soldiers complained about arbitrary and capricious treatment at this level of courts-martial. Even at general courts-martial, non-lawyer decision-making dominated the process and, while legally qualified counsel prosecuted and defended at this level of the process, the law officer (the forerunner of today’s military judge) had only limited powers.68 There was, for example, no option for a trial by judge alone; all courts-martial were trials by panel. This meant that there could be no judge-alone sentencing either; panels imposed all punishments.

Senator Ervin became convinced that courts-martial would be fairer if they were more like civilian courts. Prior to 1966, he introduced eighteen separate pieces of legislation that would have amended the UCMJ.69 Most of these bills had the goal of reducing, if not eliminating, the role of non-lawyers in the military justice system. This was because, in Senator Ervin’s opinion, the court-martial process would be better if administered by uniformed lawyers.70

At the beginning of the 90th Congress, which was in session from 1967 to 1969, Senator Ervin combined all previous UCMJ legislation into a single bill and introduced it into the Senate.71 Since the Department of Defense (DoD) opposed most of the changes in Ervin’s single bill, its supporters on the Senate Armed Services Committee blocked action on the bill.72

Ervin’s allies in the House of Representatives now took a new approach: they introduced legislation in the House containing only those reforms in Ervin’s Senate legislation that were acceptable to the DoD. As most of these reforms were “designed principally to increase the participation of military lawyers in [special] courts-martial,” there was little objection to them.73 After all, since special courts-martial featured no lawyers, it was hard to argue against injecting at least some JA involvement in the process, especially when a Soldier might be sentenced to six months’ confinement by a special court.74

When this House legislation reached the Senate in June 1968, Senator Ervin immediately began amending the House-passed bill so it would have “the minimum reforms necessary to any meaningful legislation.”75

At this point in the process, Senator Ervin was aided by a fortuitous event: Major General Kenneth J. Hodson, who had only recently become The Judge Advocate General of the Army, was the DoD’s representative in negotiations on Ervin’s Senate reforms. Hodson, who had a strong background in military criminal law, agreed with most of Ervin’s reforms, and he seems to have convinced other DoD officials to accept the legislation Senator Ervin proposed.76 As Hodson later recalled, the final bill was “the best bill we could get at the time. . . . But [it] was worth the effort, because without it, we would have had an extremely difficult time handling the sophisticated problems that came to us in the My Lai cases.”77

The end result was that the Senate Armed Services Committee accepted the amended legislation. After the bill was reported out of committee, both the House of Representatives and the Senate adopted it on a voice vote, without any dissent, in early October 1968.78 President Johnson signed the Military Justice Act in a White House ceremony on 24 October 1968.79

The new legislation was a revolution in courts-martial practice and procedure. The law officer—the quasi-judge official created by the original UCMJ in 1950—was now renamed the “military judge,” and he was given new authority that made him comparable to a civilian judge. The most remarkable change was that the new military judge, who presided over all general and special courts-martial, had the authority to try the case by himself.80 No longer would guilt or innocence be determined exclusively by a panel of non-lawyers. Rather, if the accused, knowing the identity of the judge (and after consultation with defense counsel), requested in writing that the court be composed solely of the military judge, then only that judge would decide both findings and a sentence.81

But the Military Justice Act also gave the judge other powers that the court-martial panel had previously performed. For the first time, the judge had the power to call the court into session without the attendance of the panel members for the purpose of deciding interlocutory motions and motions raising defenses and objections.82 The judge also could arraign the accused and receive his plea. In addition, for the first time, the judge had the authority to decide challenges for cause against panel members; previously, the court itself voted on challenges to its own membership.83

Another provision of the Act required that each Service’s Judge Advocate General creates a field judiciary from which military judges would be assigned to courts-martial.84 Prior to this time, all JAs serving as law officers had been part of the convening authority’s command and were assigned to the staff judge advocate’s office. Requiring a field judiciary meant that judges were now truly independent from the local command, as they were not rated by a commander or convening authority. While the Army and the Navy had already established field judiciaries prior to October 1968, the new legislation guaranteed that military judges from all the Services would be independent of the convening authority. Finally, in the Army at least, military judges began wearing black robes and being addressed as “Your Honor.”85

Special courts-martial also underwent additional unprecedented changes. While Senator Ervin’s legislation did not require that the trial and defense counsel at special courts-martial be licensed attorneys, the new law provided that the accused “shall be afforded an opportunity to be represented” by a lawyer at a trial by special court-martial.86 There was only one exception: if “physical conditions” or “military exigencies” meant that counsel “having such qualifications” could not be obtained, then a non-lawyer might represent the accused.87 As a practical matter, however, this exception has rarely been used.

Just as the act upgraded the law officer to the new position of military judge, it also upgraded the existing boards of review. They were re-designated as “courts of military review” and their members were now called judges.88 These appellate courts remained under the authority of The Judge Advocate General, but the new legislation meant that there was a chief judge who could now divide the other judges into panels of not less than three, and who also appointed a senior judge to preside over each panel. Under the original UCMJ, there were separate boards of review; after the Military Justice Act of 1968, there was only one court with several panels. The idea behind this change was that a single court would ensure greater consistency in decision-making and a higher-quality legal decision than that of separate review panels.89

Even the COMA (today’s Court of Appeals for the Armed Forces) saw some change. For the first time, an accused could petition COMA for a new trial on the basis of newly discovered evidence or fraud; previously, an accused could petition COMA only if sentenced to death, dismissal, punitive discharge, or a year or more confinement. The new act also extended the time within which an accused could petition COMA from one year to two years.90

While the Military Justice Act of 1968 was a revolution, it was a second revolution in the sense that it completed the process that had begun with the creation of the UCMJ. Prior to 1950, the role of lawyers in the military justice system was minimal. Consequently, it was a clear break with the past when, in enacting the new UCMJ, lawyers were accepted as part of military criminal law and were given defined powers to make legally binding decisions at the trial level. It follows that changes made to the UCMJ in 1968 were a fulfillment of initiatives started in 1950; the Military Justice Act of 1968 completed the revolution started in 1950. When the legislation went into effect on 1 August 1969 (accompanied by a new MCM91), uniformed lawyers had the additional tools that would, in a short time, transform courts-martial into fuller and fairer proceedings with due process akin to that enjoyed by defendants in U.S. district courts.

Aspects of the UCMJ that we take for granted today did not exist prior to 1968, like Article 39a sessions outside the hearing of the members, judge-alone trials, and lawyers at special courts. But, these changes did not end all complaints about the system. Books published in the 1970s, such as Robert Sherrill’s unflattering Military Justice Is to Justice as Military Music Is to Music92 and Luther West’s highly critical They Call It Justice,93 convinced more than a few observers that additional reforms were needed if military criminal law was to provide the same due process for Soldiers that civilians enjoyed in civilian courts. Even authors who recognized that the Military Justice Act of 1968 ushered in considerable reforms remained unsatisfied. In Justice Under Fire, for example, Yale professor Joseph Bishop argued that additional reforms should be made to the UCMJ. “Civilians,” he wrote, “should be employed as military judges” at both the trial and appellate level.94 As for substantive law, Bishop argued that Articles 88, 133, and 134 “should be repealed.”95

In the years since the Military Justice Act of 1968, civilianization has continued. The Military Rules of Evidence, modeled after the Federal Rules of Evidence, were adopted in 1980.96 This meant that the process for admitting evidence at courts-martial was basically the same as the process for admitting evidence in U.S. district courts. In the 1980s, Congress also amended the UCMJ to provide for direct appeal from the Court of Appeals for the Armed Forces to the U.S. Supreme Court—another recognition that the civilianization of the military justice system had occurred to such an extent that there should be a direct appeal mechanism to the highest court in the land. Yet another example of the ongoing civilianization of courts-martial is the most recent changes to military justice for sexual harassment offenses.97 After all, when activists demanded systematic changes in how the military handles allegations of sex-related offenses at courts-martial, they looked to procedures in civilian courts for solutions.

Changes to the UCMJ, effective after 27 December 2023, remove authority from commanders to decide whether certain offenses are referred to trial by general or special courts-martial and give that authority to “special trial counsel.”98 These are experienced JAs with specialized training both in criminal law and in special victim litigation.

Offenses now under the control of lawyers include: murder; manslaughter; rape and sexual assault; sexual assault of a child; kidnapping; domestic violence; stalking; child pornography; and substantiated sexual harassment.99 Just as lawyers serving as civilian prosecutors in cities and counties in the United States determine whether an offense should go to trial, so too uniformed lawyers in the armed forces will now decide whether serious victim-centric felony-level offenses go to trial by courts-martial.

While a commander continues to be responsible for good order and discipline in his command, special trial counsel are independent of the chain of command of the victim and of the accused.

Another significant change, effective 27 December 2023, is that all sentencing will be by military judge alone under Article 53, UCMJ.100 Prior to this change, if the accused elected trial by a panel, and entered pleas of not guilty, then the panel would decide guilt or innocence and determine an appropriate sentence. This civilianization of sentencing also includes “sentencing parameters,” which the President implemented in July 2023 to set sentencing ranges based on five factors, including the offense and corresponding guidelines in U.S. district court.101 The linkage to civilian practice in Federal court is obvious—as the UCMJ parameters specifically required the military judge to look at civilian court sentencing guidelines.102

Conclusion

The impetus for the transformation of the military justice system—both judicialization and civilianization—came from different events. The courts-martial arising out of the Houston Riot of 1917 was the triggering event for judicialization, a process that was pushed farther along by the view of citizen-soldiers in World War II and Vietnam that courts-martial were unfair and should be more judicial in nature.

The impetus for civilianization was Congress’s decision that courts-martial would be fairer if they mirrored the practice of criminal law in U.S. district courts, and the addition of Article 36 to the UCMJ inexorably led to greater civilianization. The presence of qualified legal counsel at special courts, the creation of the position of military judge, the establishment of Military Rules of Evidence, and direct appeal to the U.S. Supreme Court all reflect civilianization. Viewed from this perspective, the most recent changes to the UCMJ—and the emergence of the Office of Special Trial Counsel with decision-making power over offenses previously in the domain of commanders—reflects this increasing civilianization. Regardless of the impetus for change, the solution inexorably meant more civilianization. For example, when Congress decided that sentencing by panels under the UCMJ was arbitrary and capricious, it looked to the judge-alone structure of the U.S. district courts as the fix—more civilianization. When Congress decided that non-lawyer commanders were deficient in handling sex-related misconduct, Congress gave decision-making authority on serious felonies to lawyers with power akin to that of a civilian prosecutor—more civilianization.

There will likely be more civilianization in the years to come. Might Congress decide that punitive discharges should no longer be part of a courts-martial sentence and should be replaced with a process whereby a Soldier convicted of a felony-level offense at court-martial is discharged administratively under other than honorable conditions? Might Congress decide that fairness requires that a commander be completely removed from the military justice system and that lawyers be given complete control over the referral of charges to trial and all post-trial matters?

Only time will tell. But there is no doubt that, in the years to come, the military justice system will continue to reflect the changes necessary to maintain good order and discipline while ensuring judicial standards commensurate with society’s understanding of justice. TAL

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Mr. Borch is the Regimental Historian, Archivist, and Professor of Legal History and Leadership at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia.

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Notes

1. Articles of War of 1806, reprinted in 2 William Winthrop, Military Law and Precedents 1509 (1886).

2. See Judge Advoc. Gen.’s Corps, U.S. Army, The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775—1975, at 29 (1975) [hereinafter The Army Lawyer].

3. Id.

4. Id.

5. Id.

6. Id.

7. Id.

8. For another court-martial involving General Wilkinson and an officer who refused to cut his pig-tail, see Fred L. Borch, The True Story of a Colonel’s Pigtail and a Court-Martial, Army Law., Mar. 2010, at 3, 3-4.

9. Articles of War of 1806, art. 69, reprinted in 2 Winthrop, supra note 1 (emphasis added).

10. Not until the enactment of the Uniform Code of Military Justice in 1950 did an accused have the absolute right to legally qualified counsel, and then only at general courts-martial. An Act to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, Pub. L. No. 81-506, art. 27, 64 Stat. 107, 117 (1950).

11. Arthur Murray, A Manual for Courts-Martial (1895). For more on this first manual, see Fred L. Borch, The History of the Paperback Manual for Courts-Martial, Army Law., Aug. 2016, at 1, 1.

12. The Army Lawyer, supra note 2, at 125.

13. Id.

14. Id.

15. The Revised Statutes of the United States, first published in 1874, served as the predecessor of the U.S. Code. Margaret Wood, The Revised Statutes of the United States: Predecessor to the U.S. Code, Lib. of Cong. Blogs: In Custodia Legis (July 2, 2015), https://blogs.loc.gov/law/2015/07/the-revised-statutes-of-the-united-states-predecessor-to-the-u-s-code.

16. An Act Reorganizing the Several Staff Corps of the Army (Act of June 23, 1874), ch. 458, § 2, 18 Stat. 244.

17. The Army Lawyer, supra note 2, at 127-28.

18. Id. at 128-29. For a comprehensive look at the Ansell-Crowder controversy, see Terry W. Brown, The Crowder-Ansell Dispute: The Emergence of General Samuel T. Ansell, 35 Mil. L. Rev. 1 (1967).

19. The Army Lawyer, supra note 2, at 126.

20. Garna L. Christian, Black Soldiers in Jim Crow Texas 1899-1917, at 145 (1995). For more on the Houston Riot cases, see Fred L. Borch III, “The Largest Murder Trial in the History of the United States”: The Houston Riots Courts-Martial of 1917, Army Law., Feb. 2011, at 1.

21. The Army Lawyer, supra note 2, at 126.

22. Id.

23. Christian, supra note 20, at 153, 172.

24. Id. at 162.

25. John Minton, The Houston Riot and Courts-Martial of 1917, at 16 (1990).

26. Id.

27. Id.

28. The Army Lawyer, supra note 2, at 127.

29. Id.

30. Id.

31. Id.

32. Trials by Court-Martial, Hearing Before S. Comm. On Mil. Affs. on S. 5320, 65th Cong. 39 (1919) (statement of Brigadier General Samuel T. Ansell); The Army Lawyer, supra note 2, at 127.

33. The Army Lawyer, supra note 2, at 129.

34. Headquarters, War Dep’t, Gen. Orders No. 7 (17 Jan. 1918).

35. See id.

36. The Army Lawyer, supra note 2, at 130.

37. Id.

38. Id.

39. Id. at 132-34.

40. Articles of War, Pub. L. No. 64-242, 39 Stat. 619 (1916).

41. A Manual for Courts-Martial Courts of Inquiry and of Other Procedure under Military Law, U.S. War Dep’t, ch. VI, sec. I, para. 76, at 40-41 (1917). It was not until the enactment of the Uniform Code of Military Justice in 1950, and the publication of a uniform MCM in 1951, that the entire MCM was “prescribed” by the President via an executive order. President Harry S. Truman prescribed the Manual for Courts-Martial, United States, 1951, on 8 February 1951 when he signed Executive Order 10214. See Exec. Order No. 10214, 16 Fed. Reg. 1303 (Feb. 10, 1951).

42. The Army Lawyer, supra note 2, at 132.

43. Id. at 133-34.

44. Id. at 134.

45. See id. at 133-34.

46. See id. at 134-35.

47. Id. at 135.

48. S. 64, 66th Cong. (1919) (“A Bill to Establish Military Justice”).

49. Edmund Morgan, The Existing Court-Martial System and the Ansell Army Articles, 29 Yale L.J. 52, 73-74 (1919) (emphasis added).

50. See, e.g., Establishment of Military Justice: Hearings Before a Subcomm. of the S. Comm. On Mil. Affs., 66th Cong. (1919).

51. 1920 Articles of War, Pub. L. No. 66-242, 41 Stat. 749.

52. Id. sec. II.B, art. 8, 41 Stat. at 788; see also The Army Lawyer, supra note 2, at 136-37.

53. Sec. II.G, art. 50 1/2, 41 Stat. at 797.

54. See The Army Lawyer, supra note 2, at 136-37.

55. Sec. III.D, art. 70, 41 Stat. at 802.

56. Sec. II.A., art. 4, 41 Stat. at 788; A Manual for Courts-Martial, U.S. War Dep’t para. 6(c), at 9-10 (1921).

57. The Army Lawyer, supra note 2, at 43. Ansell believed that his reduction in rank was in retaliation for his “outspoken opposition to the Articles of War and the administration of military justice.” Id. This may or may not have been true. Given that World War I was at an end, the Army was rapidly reducing in size, and Crowder had returned to full-time duties as The Judge Advocate General, it is possible that Secretary of War Newton Baker and the War Department decided that since Ansell was no longer The Acting Judge Advocate General, his temporary rank of brigadier general was no longer appropriate.

58. An Act to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, Pub. L. No. 81-506, art. 67, 64 Stat. 107, 129 (1950); Military Justice Act of 1968, Pub. L. No. 90-632, sec. 2(2), 82 Stat. 1335, 1335.

59. Act of August 10, 1956, ch. 1041, § 836, 70A Stat. 36, 50.

60. UCMJ art. 36 (2006).

61. An Act to Unify, Consolidate, Revise, and Codify the Articles of War, the Articles for the Government of the Navy, and the Disciplinary Laws of the Coast Guard, and to Enact and Establish a Uniform Code of Military Justice, Pub. L. No. 81-506, 64 Stat. 107 (1950).

62. Id. art. 26, 64 Stat. at 117.

63. Id.

64. Id. art. 36, 64 Stat. at 120.

65. Military Justice Act of 1968, Pub. L. No. 90-632, 82 Stat. 1335.

66. Prior to 1950, the Army conducted courts-martial under the Articles of War while courts-martial in the Navy were governed by the Articles for the Government of the Navy. The new UCMJ created a single criminal code and greatly increased lawyer participation in the court-martial process. While there had been limited lawyer involvement under the Articles of War (a judge advocate served as a law member at general courts-martial in the Army after 1920), there was no requirement, much less any role, for legally qualified counsel at Navy courts-martial until the enactment of the UCMJ. The Army Lawyer, supra note 2, at 136. Line-officer opposition to lawyer participation at Navy courts-martial meant that the Navy resisted the creation of a separate corps for lawyers until 1967, when Congress finally passed legislation creating a Navy Judge Advocate General’s Corps. Jay M. Siegel, Origins of the United States Navy Judge Advocate General’s Corps 617-86 (1997).

67. See The Army Lawyer, supra note 2, at 243-44; Constitutional Rights of Military Personnel: Hearings Before the Subcomm. on Const. Rights of the S. Comm. on the Judiciary Pursuant to S. Res. 260, 87th Cong. (1962).

68. See Manual for Courts-Martial, United States ch. IX, para. 39, at 55 (1951). The law officer (who was present only at a general court) ruled on all interlocutory questions except challenges for cause; the panel members themselves decided whether to sustain or overrule a challenge for cause against a member. The law officer’s rulings were final except that the court-martial panel could overrule him on a motion for a finding of not guilty. The court also could overrule the law officer on the question of the accused’s sanity. While the law officer was an important part of the process, it was the president of the panel who oversaw the court-martial. See id.

69. The Army Lawyer, supra note 2, at 243-44.

70. Id.

71. S. 2009, 90th Cong. (1967); see also The Army Lawyer, supra note 2, at 244.

72. The Army Lawyer, supra note 2, at 244; see also Sam J. Ervin, Jr., The Military Justice Act of 1968, 45 Mil. L. Rev. 77 (1969) (providing background and legislative history of the Military Justice Act of 1968).

73. The Army Lawyer, supra note 2, at 244.

74. Until the UCMJ was amended in 1999, the maximum confinement that could be imposed at a special court was six months. The National Defense Authorization Act for Fiscal Year 2000, Pub. L. No. 106-65, sec. 577, 113 Stat. 512, 625 (1999), increased that six-month jurisdictional limit to one year.

75. The Army Lawyer, supra note 2, at 245.

76. Id.

77. Major General Kenneth J. Hodson, The Manual for Courts-Martial—1984, 57 Mil. L. Rev. 1, 8 (1972). Hodson was referring to the general courts-martial arising out of the 16 March 1968 murders of unarmed and unresisting Vietnamese civilians by Lieutenant William L. “Rusty” Calley and his platoon. See Fred L. Borch III, What Really Happened at My Lai on March 16, 1968? The War Crime and Legal Aftermath, Army Law., Mar. 2018, at 1.

78. The Army Lawyer, supra note 2, at 245.

79. Ervin, supra note 72, at 78.

80. Military Justice Act of 1968, Pub. L. No. 90-632, sec. 2(3), § 816, 82 Stat. 1335.

81. Id.

82. Id. sec. 2(15), § 839, 82 Stat. at 1338.

83. Id. sec. 2(17), § 841, 82 Stat. at 1339.

84. See id. sec. 2(9), § 826, 82 Stat. at 1336.

85. The Army Lawyer, supra note 2, at 247.

86. Sec. 2(10)(B), § 827, 82 Stat. at 1337.

87. Id.

88. Id. secs. 2(26), (27), (28), (31), (32), 3(b), 82 Stat. at 1341-43.

89. For more on the new Army Court of Military Review, see Fred L. Borch, The Army Court of Military Review: The First Year (1969-1970), Army Law., Mar. 2016, at 68.

90. Sec. 2(33), § 873, 82 Stat. at 1342-43. The Military Justice Act of 2016 extends this two-year time limit to three years. Military Justice Act of 2016, Pub. L. No. 114-328, div. E, sec. 5336, 130 Stat. 2894, 2937.

91. Manual for Courts-Martial, United States (1969).

92. Robert Sherrill, Military Justice is to Justice as Military Music is to Music (1970).

93. Luther C. West, They Call It Justice (1977).

94. Joseph W. Bishop, Jr., Military Justice Under Fire: A Study of Military Law 301 (1974).

95. Id. at 302-03.

96. Exec. Order No. 12198, 45 Fed. Reg. 16932 (Mar. 12, 1980).

97. The Vanessa Guillen murder was the impetus for these changes. Johnny Diaz, Maria Cramer, & Christina Morales, What to Know About the Death of Vanessa Guillen, N.Y. Times (Nov. 30, 2022), https://www.nytimes.com/article/vanessa-guillen-fort-hood.html. The Netflix documentary, I am Vanessa Guillen, increased public awareness of sexual harassment allegations made by female Soldiers. See I Am Vanessa Guillen (Netflix 2022).

98. See National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, sec. 531(a), § 824a(c)(2)(B), 135 Stat. 1541, 1692 (2021).

99. Id. secs. 531(a), 533(2), §§ 824a(c)(2)(A), 801(17), 135 Stat. at 1692, 1695-96.

100. Id. sec. 539E(a)(1), § 853(b)(1), 135 Stat. at 1700.

101. See id. sec. 539E(e), 135 Stat. at 1704; Exec. Order No. 14103, §§ 2-3, 88 Fed. Reg. 50535, 50535 (July 28, 2023).

102. See generally Michael Lewis, Major Changes in the Uniform Code of Military Justice, ABA (Oct. 7, 2022), https://www.americanbar.org/groups/judicial/publications/judicial_division_record_home/2022/vol26-1/major-changes-in-uniform-code-of-military-justice.