On May 5, 1950, President Harry S. Truman signed the Uniform Code of Military Justice (UCMJ) into law. The measure subjected all branches of the U.S. armed forces to a single system of criminal law and created a civilian appellate court to review decisions of the services’ respective boards of review. The suppression of unlawful command influence (UCI) was a central goal of the legislation.
Like the half-century mark, the 75-year point is an auspicious time to look not only at ways to improve the current system, but also to consider reforms that would dramatically alter the system President Truman signed into law. This short essay puts some of these on the table for discussion, along with others that are less momentous but still necessary or desirable. Some of these reforms are already under discussion in military justice circles or under review in the courts.
The UCMJ Through the Years
President Truman’s signing statement was brief and characteristically to the point. He wrote, in part:
It is particularly appropriate that this Uniform Code of Military Justice should be enacted into law on the eve of the first Armed Forces Day. The Code is one of the outstanding examples of unification in the Armed Forces and is tangible evidence of the achievements possible by the coordinated teamwork of the Army, the Navy, the Air Force, the Marine Corps, and the Coast Guard.
Under the provisions of this uniform and modern Code, the democratic ideal of equality before the law is further advanced.
The new law took effect on May 31, 1951. In a few months, the UCMJ will turn 75. Over that three-quarters of a century, it has been amended many times, as has the main implementing regulation, the Manual for Courts-Martial, and a sizable body of case law has been developed by the intermediate and top courts of the armed forces, now known respectively as the Courts of Criminal Appeals (CCAs) and the U.S. Court of Appeals for the Armed Forces (CAAF). A rich literature has also emerged, both in the law reviews and in law school casebooks. The military justice system has evolved as American values have evolved – occasionally it has been out in front of the civilian criminal justice system.
Recent years have seen dramatic changes around the world and in the United States. For one thing, human rights jurisprudence has extended to matters of military justice. Other democratic countries have made a host of reforms in their systems (France, Canada, UK, South Africa), even to the point of abandoning military justice in peacetime (Ukraine, Germany, Norway). A major domestic development has been our response to the evil of sexual offenses and harassment in the military workplace, which itself is a reflection of increased concern for the interests of victims. A direct result of the drive to reduce sex offenses is the removal of commander’s power to decide on the disposition – i.e., who is charged for what and at what level of severity – of such offenses and a litany of other major offenses such as murder. That reform has included the creation of so-called special trial counsel – prosecutors outside the standard uniformed chain of command. Other major changes are on the horizon. Congress has created a broad-based Military Justice Review Panel to do the heavy lifting needed to identify and evaluate potential future changes. The Review Panel issued a major report at the end of 2024, as required by the UCMJ. All of this is to the good.
Some Proposals for Reform
I do not expect all, or indeed, any of the changes I suggest below to be embraced in the immediate future, but they ought to be considered. Even rejection after study would, if cogently explained, serve a purpose by fostering public confidence that the President as commander in chief and Congress were exercising their respective powers under the Constitution wisely.
Here goes.
Courts-Martial
- Transfer what remains of commanders’ court-martial disposition authority to the special trial counsel and modify to terminology by deleting “special” and creating a Chief Trial Counsel in each service branch who would be subject to supervision by the Assistant Attorney General in charge of the Criminal Division of the Department of Justice.
- Institute standing courts-martial. Given the recent expansion by Congress and the President of the things military judges can do before referral, this is easy.
- Have a single kind of court-martial. Summary courts aren’t courts anyway, so that’s easy. Why not have, simply, “courts-martial,” neither general, special nor “short.” They would each have the same fixed number of members (“jurors,” finally?) at the constitutional minimum, but 12 for capital cases. In any event, the current provision allowing trial by “short-martial” without the accused’s consent should be repealed.
- Apply (or extend) the constitutional requirement of jury unanimity to courts-martial.
Other Military Courts
- Require that all judges in the system be civilians. CAAF judges already have to be, and CCA judges can be. Experience in the U.K. shows that having civilian trial judges is a benefit in terms of public confidence rather than a problem.
- Afford trial judges and CCA judges (if there still are CCAs) fixed eight-year terms of office. Full-time U.S. Magistrate Judges have eight-year terms.
- Combine the CCAs into a single “purple” court and transfer CAAF’s jurisdiction to the U.S. Court of Appeals for the District of Columbia Circuit.
- If CAAF survives, bar it from entertaining pro forma or “merits” petitions that fail to state an issue and require that it abandon its two-step process – like the Supreme Court’s certiorari process — in favor of summary disposition where no purpose is served by plenary briefing and argument.
- If CAAF survives, rescind the power of the Judge Advocates General to certify cases to it.
Miscellaneous Reforms
- Limit personal jurisdiction to active duty personnel and reservists who are on duty; end jurisdiction over retirees.
- Restrict subject matter jurisdiction to offenses that have a direct and substantial connection to military service; mere military status, à la Solorio v. United States, should not suffice.
- Try offenses for which there is concurrent military and civilian jurisdiction in the cognizant civilian court.
- Modify the dual sovereignty doctrine so as to bar trial by court-martial for cases in which jeopardy has previously attached in a state court.
- Make the non-binding guidance set forth in Appendix 2.1 of the Manual for Courts-Martial binding and enforceable and exclude the complainant’s preference as to forum as a factor in disposition decision making.
- Terminate the Defense Advisory Committee on Investigation, Prosecution, and Defense of Sexual Assault in the Armed Forces (DAC-IPAD) and transfer its functions to the Military Justice Review Panel.
- Create a single military bar, with a single set of professional responsibility rules.
- Combine bad-conduct and dishonorable discharges into a single category, called, for example, a “punitive discharge” or words to that effect.
- Amend Article 4, UCMJ, to make clear that summary dismissal of an officer by the President is not the equivalent of dismissal by judgment of a court-martial, but is instead an administrative measure akin to relief from command.
The floor is open.