Academic journal article Parameters

The Death of Military Justice

Academic journal article Parameters

The Death of Military Justice

Article excerpt

Buried within the National Defense Authorization Act for Fiscal Year 2011 was a provision offered by Mr. Patrick Murphy of Pennsylvania to repeal Section 654 of Title 10 US Code, the so-called "Don't Ask, Don't Tell Policy." (1) Advocates and the American media see the repeal as a minor matter limited to admitting open homosexuals to military service. On December 19, 2010, the Senate voted to end the "Don't Ask, Don't Tell Policy." This is precedent setting in that neither the House of Representatives nor the Senate held hearings to assess the impact of Section 654's rescindment in its entirety. Unfortunately, despite its title, "Policy Concerning Homosexuality in the Armed Forces," the section contains important military policy that extends well beyond the narrow issue of homosexual eligibility for military service. The repeal of those provisions will radically change the American system of military justice and discipline. Congress failed to wait on the Department of Defense's report regarding the repeal of Section 654. Thus, the report will have no power to mitigate the effects, because to restore or retain portions of Section 654 is to argue against the repeal and reveal that its repeal is improvident. With the repeal, the US military services will enter a litigious period of indiscipline.

To understand why repealing Section 654 will radically alter the system of military justice and discipline, it is first necessary to examine the Section 654 findings. The findings were not only drawn from the testimony presented in the hearings before the House Armed Services Committee in 1993 but also from appellate and Supreme Court rulings on matters of military law. Congress appended the findings to ensure that the policy enacted in 1993 would withstand constitutional challenge and based the findings on Congress's exclusive constitutional power to make rules for the government and regulation of the land and naval forces. Repealing those findings will mean that military courts will no longer be able to rely on those legal precedents as guides for the governance of the armed forces. Because those findings describe the principles that have governed the order and discipline of the military since the US civil war, the meaning of good order will be erased. That is why those findings need to be carefully reviewed.

There are fifteen findings listed in Section 654, among which only two, 13 and 15, directly refer to the issue of homosexuality. Finding 12 refers to living conditions during deployments and can be reasonably connected to 13 and 15. Two findings, 1 and 3, merely restate the power granted to Congress in Article I, Section 8, Clause 14 to regulate the armed forces. The repeal will have no effect on those powers. Five findings discuss in general terms military service. Finding 4 states the primary purpose of the armed forces; Finding 5 recognizes the need for personal sacrifice; the need for good order and discipline is recalled in Finding 6; and Finding 7 cites the importance of cohesion to military effectiveness. The remaining six findings, 2, 8, 9, 10, 11, and 14, are key, because they define the principles that underlie the established system of military justice and order. Absent these principles, most, if not all, policy regarding selection, retention, and discipline are subject to legal challenge or reinterpretation. (2)

The significance of the six key findings cannot be overstated. They have been the subject of various military policy debates throughout the history of the United States. (3) Consequently, these six findings represent a clear contemporary exercise of congressional authority and a clear definition of the military order the Congress intends. First among them is Finding 8, which has two parts. Finding 8 states that military life is fundamentally different from civilian life; the military exists as a specialized society, and one that has not only its own rules but also restrictions on personal behavior that would be intolerable in civilian society. …

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