Military Courts

Article I, §8 of the Constitution gives Congress the power to “make Rules for the
Government and Regulation of the land and naval Forces.” Congress has long employed
this power to authorize courts martial to enforce discipline and punish crimes within the
military ranks. As part of the military command structure, courts martial proceedings do
not have the same procedural safeguards of civilian courts. An 1859 decision of the
Supreme Court of the United States determined that these courts did not wield the
“judicial power” of the United States and as such were not federal courts established
under Article III of the Constitution. These same attributes of military tribunals made the
extension of their power to civilians controversial, and an 1865 Supreme Court decision
held military tribunals could not try civilians where Article III courts were in operation.
During the second half of the twentieth century, Congress revised the composition and
makeup of the military justice system to increase procedural safeguards without altering
the distinctive character of the courts. In 1950, for instance, Congress established the
Uniform Code of Military Justice and, with it the Court of Military Appeals (renamed the
United States Court of Military Appeals in 1968 [82 Stat. 176]). This court consisted of
three judges (five under the current statutory scheme) appointed from civil life by the
President of the United States by and with the advice and consent of the Senate to fifteen
year terms. No more than two of the three judges could be affiliated with the same
political party. Similarly, in 1968 Congress required military judges to preside over
general courts martial and required the Judge Advocate General of each service to
establish a Court of Military Review.
In 1983 Congress provided for appeals via writ of certiorari from the Court of Military
Appeals to the Supreme Court of the United States (97 Stat. 1406). In 1994, it changed
that court’s name again to the United States Court of Appeals for the Armed Forces and
the Courts of Military Review for each service to the Courts of Criminal Appeals.