By Eugene R. Fidell
With the major changes Congress enacted in the Military Justice Act of 2016,[1] perhaps it would be useful to try to sketch the arc of American military justice and its place in the national legal firmament since the Uniform Code of Military Justice (UCMJ) was enacted in 1950.[2] These comments are preliminary and reflect my personal views based on many years’ involvement with the military justice system. Not everyone will identify and arrange the data points the same way.
In the past, efforts have been made to characterize various periods, e.g., judicialization[3] or civilianization.[4] I would offer four basic phases, with leading figures for the first three. Like the Middle Ages, the Romantic Era, or the Industrial Revolution, these phases do not necessarily have bright-line start- or end-dates. In fact, they plainly overlap one another.
First, the period of reaction. I associate this initial period with Felix E. Larkin, for whom much of the credit for the UCMJ must go.[5] This period begins after World War II and ends with enactment of the Code five years later. This is largely a period of reaction to the abuses that were experienced in the administration of military justice during the war.[6] There were three primary features—
- Creation of a civilian court of appeals[7]
- Outlawry of unlawful command influence (UCI)[8]
- Imposition of a single criminal code for all branches of the armed forces—although the services retained (and continue to retain) very substantial autonomy despite the ostensibly “uniform” code[9]
Second, the period of institution-building. I associate this period with Chief Judge Robert E. Quinn, the former Rhode Island Governor who led the Court of Military Appeals during its formative years.[10] The chief features of this period are—
- The doctrine of “military due process”[11]
- The related “Brosman doctrine” according to which the court was “freer than most” in picking the best rule of decision[12]
- The court’s suprising willingness to entertain petitions for review that raise no legal issues
- The related profligate use of the power to specify issues not raised by the parties[13]
- Resistance to efforts by the Judge Advocate General’s corps to trim back the court’s powers[14]
