public safety outweighs the need for the prophy- lactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” In Elstad the Court held that a second confession, immediately preceded by the Miran- da warning, was admissible, although an earlier statement from the defendant had been obtained in violation of Miranda. The Court noted that suppression of a defendant’s statements assumes a “constitutional violation” but that unwarned questioning in itself violated only prophylactic standards laid down to safeguard against such a violation. Using the reasoning in Tucker the Court ruled that a noncoercive Miranda viola- tion will not result in the suppression of the “accused’s own voluntary testimony.” The im- plication of Tucker and the two later decisions is that all types of evidence will not be suppressed because of Miranda violations. FURTHER READINGS Brandt, Charles. 1989. The Right to Remain Silent. New York: St. Martins. Graham, Fred P. 1970. The Self-Inflicted Wound: The Warren Court’s Revolutionary Ruling in Criminal Law. New York: Macmillan. White, Welsh S. 2003. Miranda’s Warning Protections: Police Interrogation Practices After Dickerson. Ann Arbor, MI: Univ. of Michigan. CROSS REFERENCES Criminal Law; Criminal Procedure; Custodial Interro- gation; Due Process of Law; Right to Counsel. MIDNIGHT JUDGES Presidents throughout history have sought to influence law through their judicial appoint- ments. However, the skirmish involving the midnight judges had a much broader significance: it belonged to a fight that had begun shortly after the WAR OF INDEPENDENCE between the leaders of the new nation. The argument pitted the Federalists (led by JOHN ADAMS) against the Republicans (led by THOMAS JEFFERSON) over a fundamental problem: How much power should be given to the federal government and, in particular, the federal judi- ciary? The answer would influence the course of U.S. law for generations to come. When Adams lost the 1800 election, the nation was only 24 years old. The Constitution, ratified in 1789, was e ven younge r. For more than tw o decades, the Federalists and t he Republicans had argued over their competing visions of strong federal government versus STATES’ RIGHTS. The 1800 election crystallized these opposing philosophies. Adams and the Federalists accused the Republicans of i ntending to plunder property and undermine civilized society. On the othe r side, Jefferson and the R epublicans attacked the Federalists for trying to subvert the guarantees of the BILL OF RIGHTS. The election tipped the balance of power. With the Republicans capturing the White House and Congress, it appeared that Jefferson’s party would at last have the upper hand. But the Federalists intended to preserve their power. Just before time ran out on the Adams administration, they enacted the Judiciary Act of 1801. This sweeping law struck at a key point of contention: the jurisdiction of the federal courts. The Republicans wanted the federal courts to be constrained, but the new law gave these courts increased jurisdiction over land and BANKRUPTCY cases. The federal courts now had greater authority at the expense of the states. The act added six new federal circuits with sixteen new judges. As a final measure, they also added dozens of new justices of the peace to the District of Columbia. Between December 12 and March 4, President Adams, with the approval of the Senate, busily stacked the courts with his own people. If the Federalists could not control Washington through elected office, they would at least dictate the composition of the judiciary. The Republicans could not tolerate this bold maneuver. Enraged, Jefferson declared that “the Federalists have retired into the judiciary as a stronghold” where his own party’s efforts would be “beaten down and erased.” Once in power the Republicans quickly repealed the 1801 act, thus restoring the original jurisdictional authority of the federal courts. But removing the midnight judges presented a difficult constitutional ques- tion. The Constitution provided that federal judges were to hold office as long as they demonstrated good behavior—in effect, for life. The Republicans’ plan was therefore to abolish the new circuit courts. The Federalists called this an unconstitutional attack on the independence of the judiciary and predicted that the Supreme Court—which was dominated by Federalists— would not allow it. The Republican-controlled Congress stalled a decision on their actions by eliminating the 1802 term of the Court. The action only delayed an inevitable ruling. Fortunately for the Republicans, Adams had to leave office before he could secure commit- ments from his appointees, and several declined to serve. Those who accepted did not manage to challenge their removal. But one appointment of a midnight judge had gone largely unnoticed, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 58 MIDNIGHT JUDGES and it proved to be one of the most important appointments in U.S. history. This was the nomination of JOHN MARSHALL as chief justice of the Supreme Court. Marshall, who was an ardent Federalist, viewed President Jefferson as nothing less than an “absolute terrorist.” In 1803, when the Court reconvened, it ruled on a case that arose from Adams’s District of Columbia appointments. Prevented from receiving his commission as a JUSTICE OF THE PEACE , William Marbury asked the Court to order that his commission be honored. The Court’slandmarkopinionin MARBURY V. MADISON, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), settled the immediate dispute and partially answered the constitutional question at stake. Writing for the unanimous Court, Chief Justice Marshall dismissed Marbury’ssuitonthe grounds that the Supreme Court lacked jurisdic- tion. Marshall wanted to avoid an impasse between the judiciary and the White House. However, Marshall’s opinion also greatly ex- panded the power of the Court by holding that the judiciary has the power to say what the law is, and, if necessary, to overturn acts of Congress that it finds unconstitutional. The Court did this in Marbury for the first time in history, striking down a section of the JUDICIARY ACT OF 1789. The problem of the midnight judges was settled, but with unexpected results. The judges appointed by Adams could not take office, and in this way the Federalists were thwarted. Yet in an indirect way, they triumphed. Marshall would serve on the Supreme Court for the next 34 years and in the process become perhaps the greatest chief justice in history. Moreover, with his opi nion in Marbury v. Madison, the Court established its power of JUDICIAL REVIEW,a principal goal of the Federalists. FURTHER READINGS Lukens, Robert J. 1997. “Jared Ingersoll’s Rejection of Appointment as One of the ‘Midnight Judges’ of 1801: Foolhardy or Farsighted,” Temple Law Review 70 (spring). Stephenson, D. Grier. 1999. Campaigns and The Court: The U.S. Supreme Court in Presidential Elections. New York: Columbia Univ. Press. Streich, Michael. 2008. “Judicial Review & the Marbury Case.” American History, Suite101.com (October 30). Available online at http://americanhistory.suite101.com/ article.cfm/judicial_review_the_marbury_case; website home page: http://americanhistory.suite101.com (accessed September 7, 2009). CROSS REFERENCES Constitution of the United States; Supreme Court of the United States. MIGRATORY BIRD TREATY OF 1918 The Migratory Bird Treaty of 1918 between the United States and Great Britain prohibited the killing of many species of birds that traverse d certain parts of the United States and Canada. Such species were of great value both as a source of food and because they destroyed insects injurious to vegetation, but they were in danger of extermination through lack of protection. The state of Missouri sought to have the treaty declared an unconstitutional interference with the rights that are reserved to the states by the TENTH AMENDMENT to the Constitution. In Missouri v. Holland, 252 U.S. 416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), the Supreme Court held that a valid treaty must prevail over state law, even if a federal statute on the subject would be unconstitutional. Acts of Congress are the supreme law of the land only when made pur- suant to the Constitution, and treaties are accorded the same status when made under the authority of the United States. MILITARY GOVERNMENT A government that is established during or after military occupation by the victorious country in an armed conflict. According to INTERNATIONAL LAW , the territory that has been placed under the authority of a hostile army continues to belong to the state that has been ousted. However, it may be ruled by the occupiers under a special regime. When a country’s army achieves decisive victory over an enemy, the victor may supple- ment military presence in the enemy territory with some type of government. If the victor is a signatory to certain international agreements, it must follow international RULES OF WAR that outline the rights and responsibilities when governing a territory under belligerent occupa- tion. This military government is not the same as MARTIAL LAW, although the occupi ers may impose martial law as part of maintaining order. Certain species of birds that traverse the United States and Canada, including these snow geese, are protected by the Migratory Bird Treaty of 1918. The Supreme Court held that this treaty, and others like it, must prevail over state law, even if a federal statute concerning the same matter would be held unconstitutional. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION MILITARY GOVERNMENT 59 The rules of military government are established in various international agreements, primarily the Hague Conference of 1907 and the Geneva Conference of 1949. These docu- ments provide guidelines on such topics as rights and duties of the occupying power, protection of civilians, treatment of prisoners of war, coordination of relief efforts, property rights of the ousted state, and other wartime and postwar concerns. A country that estab- lishes a military government and steps beyond its allotted rights runs the risk of international censure or criticism. Countries sometimes try to deny that they have imposed a military govern- ment. For example, in the Persian Gulf War, Iraq claimed that Kuwait is an Iraqi province and therefore not eligible for the protections given by the law of belligerent occupation. The U.S. CIVIL WAR (1861–1865) contributed to the development of rules for military behavior and belligerent occupation. The Lieber Instruc- tions is considered a first attempt to codify the laws of war as they existed during the Civil War era. Columbia College Professor Francis Lieber prepared this list of laws in 1863 at the request of President ABRAHAM LINCOLN. They led in part to the Brussels Conference of 1887 and the Hague Conferences of 1899 and 1907 on land warfare. The Lieber Instructions included sections on military jurisdiction, protection of persons, and public and private property of the enemy. The U.S. Civil War pitted the Confederacy—a group of southern states that wanted to secede from the United States—against Union forces, made up of primarily northern and newly formed states. After the victory of Union forces, the U.S. government had to decide how to treat the defeated South. Some vocal members of Congress insisted that because the Confederate states had violated the Constitution by seceding, they had committed “state suicide” and should be treated like conquered provinces. These politicians finally got their way in 1867, two years after the war ended. State governments were abolished in the rebel states, and the territory was split into five districts, each commanded by a major general of the Union army. Gradually public opinion in the North pushed for home rule for the South, and by 1870 all southern states were restored to the Union. President RUTHERFORD B. HAYES took office in 1877 and removed the army from the last three occupied southern states. By means of the Hague and Geneva Conferences, and organizations such as the International Committee of the Red Cross, the rules of war have evolved beyond those in the Lieber Instructions. When following these general rules, victorious countries continue to have br oad discretion in how they govern con- quered zones. The United States has used various approaches to establish postwar governments. For example, after WORLD WAR II, the United States established very different types of governments to oversee the reconstruction of Germany and Japan, which were defeated by Allied forces. After Germany surrendered in World War II, the country and its capital were each divided into four zones. Government of the zones was assigned to four different countries: the United States, Great Britain, France, and the Soviet Union. The occupiers differed in their opinions about what type of permanent government should follow military occupation, and the zones occupied by the Soviet Union became communist East Germany. The other zones became demo- cratic West Germany. The two Germanys were reunited in October 1990. Unlike the military government in Ger- many, the U.S. occupation of Japan did not involve a large military presence. After Japan surrendered, its existing civilian governing structure was left mostly intact, directed by General Douglas MacArthur and the Supreme Command of the Allied Powers (SCAP). During occupation, Japan—a nation of seventy million people—was supervised by 600,000 troops, whose number was soon reduced to 200,000. During more than six years of U.S. occupa- tion, the Japanese Diet (legislature) met and passed laws that were subject to VETO by SCAP. The Japanese army and navy were abolished, weapons were destroyed, 4,200 Japanese were found guilty of WAR CRIMES, Shinto was dis- established as the state religion, and a new constitution—the “MacArthur Constitution”— was adopted. SCAP accomplished land reform, strengthened trade unions, and placed limits on Japan’s powerful monopolistic corporations. After World War II the international community agreed that more safeguards were necessary to protect civilians and their property in occupied territories. As a result the Fourth Geneva Conference was established in 1949 to tackle these issues. In more recent times, the United States, after invading Grenada and Panama, established GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 60 MILITARY GOVERNMENT a military government in each country during a brief belligerent occupation. FURTHER READINGS Chapman, William. 1991. Inventing Japan: An Unconven- tional Account of the Post-War Years. Englewood Cliffs, NJ: Prentice-Hall. Craven, Avery. 1969. Reconstruction: The Ending of the Civil War. New York: Holt, Rinehart and Winston. de Mulinen, Frederic. 1987. Handbook on the Law of War for the Armed Forces. Geneva: International Committee of the Red Cross. Dolan, Ronald E., and Robert L. Worden. 1992. Japan: A Country Study. Washington, D.C.: Government Print- ing Office. Lawson, Gary, and Guy Seidman. 2001. “The Hobbesian Constitution: Governing without Authority. North- western Univ. Law Review 95 (winter). Thomas, David Yancey. 2001. A History of Military Government in Newly Acquired Territory of the United States. New York: Columbia Univ. Press. Available on- line at http://www.archive.org/details/militaryterritory00 thomrich; website home page: http://www.archive.org (accessed August 13, 2009). CROSS REFERENCE Military Law. MILITARY LAW Military law refers to the body of laws, rules, and regulations that have been developed to meet the needs of the military. It encompasses service in the military, the constitutional right s of service members, the military crim inal justice system, and the international law of armed conflict. The Framers of the Constitution vigorously debated the necessity and advisability of a standing army. Federalists such as ALEXANDER HAMILTON and JAMES MADISON argued that a standing army was needed for the maintenance of a unified defense. Others such as THOMAS JEFFERSON and GEORGE MASON were fearful of instituting a military establishment that could be an instrument of governmental abuse. They argued that the Constitution should prohibit, or at least limit, the size of the arme d forces. The opposing sides compromised by approving a standing army but limiting appropriations for its support to two-year terms, thereby imposing a continual check on the military’s activities. The authority of the government to main- tain a military and to develop rules and regulations governing it is found in Article I, Section 8, of the Constitution, which grants Congress the power to provide for the common defense and to raise and support arme d forces. The U.S. SUPREME COURT confirmed the legality of the standing army in Ex parte Milligan (71 U.S.[4Wall.] 2, 18 L. Ed. 281 [1866]). It held that the Constitution allows Congress to enact rules and regulations to punish any member of the military when he or she commits a crime, in times of war or peace and in any location. The Court further confirmed the constitutionality of MARTIAL LAW in situations where ordinary law is insuffi- cient to secure public safety and private rights. Service in the Military Congress’s duty to provide for the national defense is carried out through four basic routes into military service: enlistment, activation of r eser- vists, CONSCRIPTION, and appointment as a n officer. Typically, military enlistment entails a six- year service obligation, usually divided between active and reserve duty. Enlistees agree to abide by the provisions of the UNIFORM CODE OF MILITARY JUSTICE (UCMJ), obey lawful orders, serve in combat as required, and accept any changes in status or benefits brought about by war or statutory amendments. In return, the military branch agrees to provide the enlistee with compensation and to honor promises concerning assignment, education, compensa- tion, and support of dependents. Enlistment is open to persons who are at least 17 years old and who enter into the enlistment agr eement voluntarily. It is not available to declared homosexuals (although the military may not inquire as to sexual orientation) or to unmarried parents of children under 18 years of age. Enlistees are required to sign the enlistment agreement and, in most cases, to take the oath of allegiance. Enlistment in the armed forces creates both a contractual obligation and a change in the recruit’s legal status (United States v. Grimley, 137 U.S. 147, 11 S. Ct. 54, 34 L. Ed. 636 [1890]). Although PERSONAL SERVICE contracts are gener- ally not enforceable, the courts recognize the special legal status of military enlistees and have required those who breach the enlistment contract to remain in the service or serve a prison term. However, after the institution of the all-volunteer military during the 1970s and 1980s, the courts relied more on traditional contract law when ruling on breach-of-enlist- ment suits (Woodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987], and Cinciarelli v. Carter, 662 F.2d 73, 213 U.S. App. D.C. 228 [D.C. Cir. 1981], where the courts GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITARY LAW 61 applied contract law principles and found that the enlistments in question were void or voidable.) Reservists or NATIONAL GUARD members are civilians who are subject to active service to execute laws, suppress insurrections, and repel invasions. Several suits by state governors have challenged congressional power to call up reser- vists. In Perpich v. Department of Defense (496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 [1990]), a suit by Minnesota’s governor challenging Con- gress’s authority to call reservists to active duty, the U.S. Supreme Court confirmed that the reserve system, under which members serve in both the state National Guard and the federal National Guard, is a necessary and proper exercise of Congress’s power to raise and support armies. Conscription, also known as the draft, is another route by which individuals are inducted into military service. The draft was the primary means of filling the ranks of the military from WORLD WAR I through WORLD WAR II,theKOREAN WAR , and the VIETNAM WAR. Although many cases challenged the constitutionality of conscription, the U.S. Supreme Cour t has consistently held that Congress’s power to conscript Americans for military service is “beyond question” (United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 [1968]). Deferments and exemptions from the draft were granted for certain physical, mental, and religious reasons, or where induction would cause an undue hardship on the draftee or the draftee’s family. The draft was abolished in 1972. The final method of entry into the military is through appointment as an officer. Officer appointments are governed by the appoint- ments clause of the Constitution (Art. II, Sec. 2, Cl. 2). Officers are appointed to a rank within a specific branch of the service. Most military personnel serve their entire tour of duty and are discharged without any complications. An honorable discharge must be issued when a service member’s record reflects acceptable military conduct and performance of duty (32 C.F.R. pt. 41, app. A). An honorable discharge cannot be denied without DUE PROCESS OF LAW (United States ex rel. Roberson v. Keating, 121 F. Supp. 477 [N.D. Ill. 1949]). A general discharge under honorable conditions may be issued when the service member’srecorddoes not warrant an honorable discharge because of ineptitude, defective attitude, or apathy (32 C.F.R. pt. 41, app. A). A discharge under other than honorable conditions may be issued under certain circum- stances indicating that a service member’sbehavior is inconsistent with conduct expected of military personnel (32 C.F.R. pt. 41, app. A, pt. 2). In most cases, the service member must be notified and given an opportunity to request review of the discharge by an administrative review board. Bad-conduct and dishonorable discharges are punitive discharges that may be issued only after a full COURT-MARTIAL. Each results in loss of veterans’ benefits and, in some cases, loss of CIVIL RIGHTS. In addition to discharges, separations from military service may be accomplished through administrative proceedings (10 U.S.C.A. § 1169). The Department of Defense outlines the rea- sons, guidelines, and procedures for adminis- trative separation (32 C.F.R. pt. 41, app. A). Administrative separation may be allowed to permit a service member to pursue educational opportunities or to accept public office; to alleviate hardship or dependency; to accommo- date the demands of pregnancy or parenthood; to address religious concerns or conscientious objections; or to address physical and mental conditions that interfere with an assignment or the performance of duty. Administrative separation may be initiated when a service member is found to have engaged in homosexual conduct. The National Defense Authorization Act for Fiscal Year 1994 (Pub. L. No. 103-160, Nov. 30, 1993, 107 Stat. 1547) states: “The presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high stan- dards of morale, good order and discipl ine, and unit cohesion that are the essence of military capability.” The courts have consistently upheld the congressional prerogative to discharge homo- sexuals from the military. During the 1980s, the military discharged service members for homosexual orientation as well as homosexual conduct. In 1993, President BILL CLINTON attempted to change the military’s policy of discharging gays and lesbians because of their sexual orientation. He struck a compromise with those who were opposed to changing the policy in the National Defense Authorization Act of 1994, which requires sepa- ration from service of individuals who volun - tarily declare their homosexuality, but bars military personnel from inquiring into a service GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 62 MILITARY LAW member’s sexual orientation. This became known as the don't-ask-don't-tell policy. Two administrative bodies review military discharges: the Discharge Review Board and the Board for Correction of Military Records. Service members also may seek JUDICIAL REVIEW of a discharge, but the courts generally require exhaustion of administrative remedies before they will accept jurisdiction over a discharge review (Seepe v. Department of Navy, 518 F.2d 760 [6th Cir. 1975],andWoodrick v. Hungerford, 800 F.2d 1413 [5th Cir. 1986], cert. denied, 481 U.S. 1036, 107 S. Ct. 1972, 95 L. Ed. 2d 812 [1987]). Rights of Service Members In the past, some legal analysts contended that those in the military receive a level of constitutional protection that is inferior to that afforded to civilians. However, in United States v. Stuckey (10 M.J. 347 [1981]), the Court of Military Appeals (later called the U.S. Court of Appeals for the ARMED SERVICES) held that “the BILL OF RIGHTS appli es with full force to men and women in the military service.” Congress, under its authority to regulate the armed forces, generally determines the due process and EQUAL PROTECTION rights of service personnel, and most courts defer to congressio- nal authority in this area. However, the U.S. Supreme Court has made it clear that Congress must heed the Constitution when it enacts legislation that concerns the military. Because both the FIRST AMENDMENT and the authority to regulate the military are found in the Constitution, a balance must be struck between First Amendment freedoms and the needs of the military. For example, Article 88 of the UCMJ makes it a crime for a commissioned officer to use contemptuous words against the president, vice president, Congress, and other government officials. Although this probably would be a violation of First Amendment FREEDOM OF SPEECH outside the military context, constitutional challenges to Article 88 have consistently failed. In United States v. Howe (37 C.M.R. 555 [A.B.R. 1966]), reconsideration denied (37 C.M.R. 429 [C.M.A. 1967]), a second lieutenant was convicted of violating Article 88 when he participated in an antiwar demonstration in which he carried a sign derogating President LYNDON B. JOHNSON. The court allowed his conviction to stand, even though he was off duty and wearing civilian clothes at the time of the demonstration. Similar limitations on the speech of enlisted personnel have been upheld as well. Military personnel are entitled to certain rights and benefits by virtue of their service. They retain the right to vote and participate in the election of the government. For income and property tax purposes, they retain the domicile in which they reside at the time of enlistment and cannot be taxed by other states where they may be stationed. The Soldiers and Sailors Civil Relief Act Amendments of 1942 (SSCRA) (50 U.S.C.A. app. §§ 514–591) protects military personnel from legal or financial disadvantage that results from their being ordered to active duty. A variety of remedies to alleviate hardship are available under the SSCRA, including stays of civil proceedings; stays of execution of judg- ments, attachments, or garnishments; protection against foreclosures on real or PERSONAL PROPERTY; a cap on interest rates charged on obligations incurred before active duty; and protection against evictions. The Uniform ed Services Employment and Reemployment Rights Act of 1994 (38 U.S.C.A. §§ 4301 et seq.) requires employers to rehire former employees who serve in the military for five years or less, with certain exceptions. The act also protects insurance, pension, and fringe benefits. The Veterans’ Preference Act (1944) (5 U.S.C.A. §§ 2108 and 3309–3320) grants an employment preference to certain veterans and their survivors and enhances their job security. Veterans also receive education benefits under the Post-Vietnam Era Veterans’ Educa- tional Assistance Program (1976) (38 U.S.C.A. ch. 32) and the New GI BILL (1987) (38 U.S.C.A. ch. 30). Education benefits are granted to spouses and dependent children of certain veterans in the Survivors’ and Dependents’ Educational Assis- tance Act (38 U.S.C.A. § 3501). Finally, most veterans are eligible for assistance in purchasing a home under a federal lender-guarantee program that lowers the mortgage interest rate and down payment that a veteran must pay (38 U.S.C.A. § 3710). Under some circumstances, military per- sonnel may seek compensation from the federal government for injury or death that occurs during service under the FEDERAL TORT CLAIMS ACT (28 U.S.C.A. §§ 2675). The most notable exceptions under the act are claims that arise out of combat during time of war and claims that arise while the service member is in a GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITARY LAW 63 country outside the United States. In addition, the Military Claims Act (10 U.S.C.A. § 2733) provides an administrative remedy for those who incur damage to, or loss of, property, PERSONAL INJURY, or death caused by a civilian employee or a member of the armed services. The Military Claims Act addresses injuries that are not covered by the Federal Tort Claims Act. Military Criminal Justice System The military justice system is the primary legal enforcement tool of the armed services. It is similar to, but separate from, the civilian criminal justice system. The Uniform Code of Military Justice, first enacted in 1950, is the principal body of laws that apply to members of the military. Military tribunals interpret and enforce it. There are several rationales for a separate military justice system. The system’s procedures are efficient and ensure swift and certain decisions and punishments, which are essential to troop discipline. By comparison, the civilian criminal justice system can be cumbersome and slow and may yield unanticipated or inconsistent results. Speedy trials and predictable decisions aid the military in its effort to maintain order and uniformity. This, in turn, contributes to national security. In addition, the court-martial system fulfills the civilian public’s expectation of a disciplined and efficient military. In addition to enhancing discipline, order, uniformity, efficiency, and obedience, the UCMJ addresses certain offenses that are unique to the military, such as desertion, insubordina- tion, or absence without leave. Finally, the military requires a uniform system that can be administered at the location of the crime to adjudicate offenses committed by service mem- bers outside U.S. jurisdiction. The jurisdiction of the military courts is established when the court is properly con- vened, the membership of the court satisfies the requirements of the UCMJ, the court has the power to try the accused, and the offense is addressed in the UCMJ. The UCMJ provides that military courts have jurisdiction over all members of the armed services and certain civilians who meet limited, well-defined criteria. The three tiers of military courts are courts- martial, Courts of Criminal Appeals, and the United States Court of Appeals for the Armed Services. Courts-Martial The three types of courts- martial—summary, general, and special— comprise the trial level of the military justice system. Courts-martial were originally autho- rized by an amendment to the ARTICLES OF WAR (Act of March 3, 1863 , ch. 75, sec. 30, 12 Stat. 736). The amendment gave courts-martial jurisdiction over military personnel in times of war, insurrection, or rebellion to prosecute such crimes as MURDER, ROBBERY, ARSON, BURGLARY, RAPE, and other common crimes. The UCMJ authorizes military command ers to convene courts-martial on an ad hoc basis to try a single case or several cases of service members who are suspected of having violated the code. Summary Courts-Martial Summary courts-martial adjudicate minor offenses. Their jurisdiction is limited to enlisted personnel. Summary courts- martial may impose a sentence of confinement for not more than one month, hard labor with- out confinement for not more than 45 days, restriction to specified limits for not more than two months, or FORFEITURE of not more than two- thirds of one month’s pay (UCMJ art. 20, 10 U.S. C.A. § 820). Although the summary court- martial is intended to dispose of petty criminal cases promptly, it must fully and fairly investigate both sides of the case. Nevertheless, the protec- tions guaranteed in special or general courts- martial are diminished in a summary hearing. Therefore, a summary court-martial may be conducted only with the consent of the accused. The DEFENDANT in a summary court-martial may consult with military counsel before trial but is not entitled to military defense counsel at the hearing. A summary court-martial is presided over by a single commissioned officer who conducts the trial with minimal input from adversarial counsel and acts as judge, fact finder, and counsel. Thus, a summary court-martial is more similar to the inquisitorial courts of the civil-law system than to the Anglo American adversarial model. Summary courts-martial are employed less frequently than are other types of courts-martial. With increased recognition of the constitutional rights of the accused during the last part of the twentieth century, their use has greatly diminished. Special Courts-Martial A special court-martial generally consists of a military judge and at least three armed-service members. However, under Article 16(2) of the UCMJ (10 U.S.C.A. § 816[2]), the members may sit without a judge, or the accused may choose to be tried by a judge alone. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 64 MILITARY LAW The military-judge position was authorized by the Military Justice Act of 1968 (UCMJ art. 26, 10 U.S.C.A. § 826). The military judge ’s role is similar to that of a civilian trial judge. Military judges do not determine penalties and may only instruct the members of the court, who act as a jury, as to the kind and degree of punishment that the court may legally impose, unless the accused elects to have the judge sit as both judge and jury. This dual role is pe rmissible only in non-capital cases. In any case, the judge rules on all leg al questions. The UCMJ requires that service members who are selected for the special court-martial be the best qualified to serve, as measured by their age, education, training, experience, length of service, and judicial temperament. Special courts-martial have jurisdiction over most offenses under the UCMJ and may impose a range of sentences, including confinement for no longer than six months; three months of hard labor without confinement; a bad-conduct discharge; forfeiture of pay not to exceed two- thirds of monthly pay; withholding of pay for no more than six months; or a reduction in rank (UCMJ art. 19, 10 U.S.C.A. § 819). General Courts-Martial The general court- martial is the most powerful trial court in the military justice system. A general court-martial is presided over by either a military judge and at least five service members, or a judge alone if the accused so requests and the case involves a non-capital offense (UCMJ art. 16[1], 10 U.S.C.A. §816[1]). General courts-martial may try all offenses under the UCMJ and may impose any lawful sentence, including the death penalty, dishonorable discharge, total forfeiture of all pay and allowances, and confinement. General courts-martial have jurisdiction over all persons who are subject to the UCMJ. A general court-martial may be convened only by a high-ranking official, such as the president, the secretary of a military branch, a general, or a commander of a large unit or major installation. The commander of a smaller unit may only convene a speci al court-mar tial. Trial attorneys who are appointed to represent the accused in a general court-martial must be certified military lawyers. Verbatim recordings of general courts-martial are required by the Rules for Court-Martial. The constitutionality of the court-martial system has been upheld in a number of cases under the theory that the military constitutes a separate society that requires its own criminal justice system. The U.S. Supreme Court has consistently deferred to the authority of the military, as conferred by Congress, to govern its members. In Solorio v. United States (483 U.S. 435, 107 S. Ct. 2924, 97 L. Ed. 2d 364 [1987]), the Court held that “Congress has primary responsibility for the delicate task of balancing the rights of servicemen against the needs of the military [W]e have adhered to this principle of deference in a variety of contexts where, as here, the constitutional rights of servicemen were implicated.” Courts of Criminal Appeals The intermediate appellate courts in the military justice system are the four Courts of Criminal Appeals (CCA), one for each branch of the armed services (i.e., the Army, Navy, Air Force, and Marines). Before 1995, these courts were called the Courts of Military Review (CMR). The Military Justice Act of 1968 (10 U.S.C.A. § 866) established the CMR to review court- martial convictions. They generally have three- judge panels that review all cases in which the sentence exceeds one year of confinement, involves the dismissal of a commissioned officer, or involves the punitive discharge of an enlisted person (UCMJ art. 66, 10 U.S.C.A. § 866). Courts of Criminal Appeals may review findings of fact and findings of law and may reduce the sentence, dismiss the charges, or order a new trial. Review by the CCA is mandatory and automatic in cases where the sentence is death, dismissal, dishonorable or bad-conduct dis- charge, or imprisonment for one year or more, and the right to appellate review has not been waived or an appeal has not been withdrawn. CCA judges may be commissioned officers or civilians, but all must be members of a bar of a federal court or of a state’s highest court. The judges are selected by the JUDGE ADVOCATE general of the appropriate service branch. CCA judges do not have tenure or fixed terms. They serve at the pleasure of the judge advocate general. Decisions of the CCA are subject to review by the United States Court of Appeals for the Armed Forces. U.S. Court of Appeals for the Armed Forces Congress established the U.S. Court of Appeals for the Armed Forces (USCAAF), formerly known as the Court of Military Appeals (CM A), in 1950 (10 U.S.C.A. § 867). It is the highest civilian court that is responsible GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITARY LAW 65 for reviewing decisions of military tribunals. It is exc lusively an appellate criminal court. The court consists of three civilian judges appointed by the president, with the advice and consent of the SENATE, to serve 15-year terms. The USCAAF has jurisdiction over all cases in which the death penalty is imposed, all cases sent by the judge advocate general for review after CCA review, and certain appeals petitioned by the accused that the court agrees to review. The court may only review questions of law. Decisions of the USCAAF may be appealed to the U.S. Supreme Court, which may grant or deny review. Jurisdictional Questions Involving Military Courts On a number of occasions in U.S. history, the jurisdiction of military courts has come into question. Congress resolved many of these disputes through legislation, the most significant of which was the Uniform Code of Military Justice. Although military courts gen- erally have powers that are analogous to those of their counterparts in the civilian system, they are subject to limitations in the federal laws creating them. The U.S. Supreme Court resolved a major jurisdictional question involving the military courts in Clinton v. Goldsmi th (526 U.S. 529, 119 S. Ct. 1538, 143 L. Ed. 2d 720 [1999]). The Court ruled that the USCAAF did not have the authority to issue an INJUNCTION preventing the U.S. Air Force from dropping a convicted officer from its rolls. The decision made clear that the president has the power to fire military personnel for the same offenses that resulted in their courts-martial and convictions. In 1996 Congress passed legislation that expanded the president’s authority over the military. The president was empowered to drop from the rolls of the armed forces any officer who had been sentenced by a court-martial to more than six months’ confinement and who had served at least six months. The case in Goldsmith arose when an Air Force major, who was HIV- positive, continued to have unprotected sex after a superior had ordered him to inform his sexual partners of his disease. When the officer had sex with two partners, including a fellow officer and a civilian, he was convicted by a court-martial of willful disobedience of an order from a superior officer and two other related charges. The officer appealed his conviction to the Court of Criminal Appeals and, later, the USCAAF, seeking an injunction to prevent the president and the Air Force from dropping the officer from the Air Force rolls. Although the CCA refused, indicating that it lacked jurisdiction, the USCAAF issued the injunction. A unanimous U.S. Supreme Court, per Justice DAVID H. SOUTER, ruled that the USCAAF lacked this form of injunctive power. According to the Court, the USCAAF authority is limited to the review of sentences imposed by courts-martial and appellate dec isions by the Court of Crimi- nal Appeals. Law of Armed Conflict The INTERNATIONAL LAW of arme d conflict applies to situations involving an armed, hostile conflict that is not a civil or internal matter. An armed conflict may begin by declaration of war, by the announcement of one governmen- tal entity that it considers itself at war with another, or through the commission of hostile acts by the military forces of one entity against another. In the past, a formal declaration of hostilities was required before a conflict was legally interpreted as a war. Thus, in Savage v. Sun Life Assurance Co. (57 F. Supp. 620 [W.D. La. 1944]), the court found that the insured, who died in the Japanese attack on Pearl Harbor, had not died as a result of war because the United States had not yet formally declared itself at war with Japan. Rather, the court found that the insured’s death was accidental and that his BENEFICIARY could collect DOUBLE INDEMNITY under an accidental death policy. In modern times, the outbreak of hostilities even without a formal declaration or ultimatum is regarded as war in a legal sense, unless both parties deny the existence of a state of war. Armed conflict may be terminated by a peace treaty, a cessation of hostilities and establishment of peaceful relations, uncondi- tional surrender, or subjugation. The United States, as a member of the UNITED NATIONS, is bound by the U.N. Charter, which requires that its members refrain from the threat or use of force in any manner that is not consistent with U.N. policies. In addition, the United States is a signatory to most major treaties relating to warfare, including the Hague Conference of 1907, the Geneva conferences of 1929 and 1949, and the GENOCIDE Convention of 1948. All of these treaties set forth basic principles that govern the conduct of war: Force should be directed only at targets that are GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 66 MILITARY LAW directly related to the enemy’s ability to wage war (military necessity); the degree of force used should be directly related to the importance of the target and should be no more than is necessary to achieve the military objective (proportionality); and the force used should cause no unnecessary suffering, destruction of civilian property, loss of civilian life, or loss of natural resources (humanitarian principle). In addition, the Hague Conference provided that captured prisoners may not be killed; captured towns may not be pillaged; and the property, rights, and lives of civilians in armed conflict areas must be respected. In addition to written treaties relating to war, international armed conflict is governed by customary international law, or the COMMON LAW of armed conflict. Under this constantly evolving body of law, certain conduct is proscribed because world opinion forbids it. In Ex parte Quirin (317 U.S. 1, 63 S. Ct. 2, 87 L. Ed. 3 [1942]), order modified by (63 S. Ct. 22), the Court upheld jurisdiction of a military tribunal over German saboteurs who used civilian disguises, even though no written law or treaty justified their trial. The Court based its decision on the ground that infiltration by disguise violated the custom- ary law of armed conflict (see also The Paquete Habana, 175 U.S. 677, 20 S. Ct. 290, 44 L. Ed. 320 [1900]). The customary law of war is based on the same principles embodied in the Hague Conference and subsequent treaties and reflects international agreement that actions that are inconsistent with those principles should not go unpunished even in the absence of express prohibitions. Many nations, including the Unit- ed States, have codified significant portions of the common law of armed conflict (see U.S. Department of the Army, The Law of Land Warfare [Field Manual 27-10, 1956].) In response to the SEPTEMBER 11, 2001, ATTACKS when terrorists hijacked four U.S. planes and used them to destroy the World Trade Center in New York and seriously damage the Pentagon, President GEORGE W. BUSH initiated his WAR ON TERRORISM . As part of this military action, Bush signed a military order on November 13, 2001, that, among other provisions, authorized the United States to try suspected terrorists before a military tribunal, rather than before a federal district court. The order authorized the secretary of defense to establish military commissions, along with special rules governing procedures, evi- dence, and other matters. The DEFENSE DEPART- MENT issued regulations in 2002. Many of the provisions in the regulations were similar or analogous to rules that apply in the civilian courts but evidentiary standards were changed to favor the prosecution. As the United States engaged in military action in Afghanistan, most suspected members of the Taliban regime and the al-Qaeda organization were held at a special detention facility at Guantanamo Bay in Cuba. The legality and constitutionality of the military commission regulations and proce- dures were challen ged by military defense lawyers in federal court. The U.S. Supreme Court overturned the procedures promulgated by the Defense Department in 2006, and later threw out a 2006 federal statute that sought to retain much of the executive order’s procedures. The first trial of a Guantanamo Bay prisoner was held in 2008. The commission convicted Salim Hamdan, the driver of Osama Bin Laden, for providing material support for TERRORISM.In 2009 the Obama administration announced that it would move the detainees to the United States and would revise the military commission rules. Moreover, the administration planned to try as many detainees as possible in the federal courts. However, as of October 2009, it was unclear when such changes would begin. FURTHER READINGS Bishop, Joseph W., Jr. 1974. Justice under Fire: A Study of Military Law. New York: Charterhouse. Denbeaux, Mark, and Jonathan Hafetz. 2009. The Guanta- namo Lawyers: Inside a Prison outside the Law. New York: NYU Press. Falvey, Joseph L. 1995. “United Nations Justice or Military Justice.” Fordham International Law Journal 19. Gilligan, Francis A. 1990. “Civilian Justice v. Military Justice.” Criminal Justice 5 (summer). U.S. Department of Defense. 2008. Manual for Courts- Martial Washington, D.C.: Department of Defense. Wiener, Frederick B. 1989. “American Military Law in the Light of the First Mutiny Act’s Tricentennial.” Military Law Review 126 (fall). Winthrop, William. 2000. Military Law and Precedents. Buffalo, N.Y.: William S. Hein & Co., Inc. CROSS REFERENCES Arms Control and Disarmament; Conscientious Objector; Gay and Lesbian Rights; Geneva Conventions, 1949; Genocide; GI Bill; Just War; Military Government; Military Occupation; Militia; Nuremberg Trials; Rules of War; Selective Service System; Solomon Amendment; Veterans Affairs Department; War; War Crimes. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITARY LAW 67 . U.S. 1036, 1 07 S. Ct. 1 972 , 95 L. Ed. 2d 812 [19 87] , and Cinciarelli v. Carter, 662 F.2d 73 , 213 U.S. App. D.C. 228 [D.C. Cir. 1981], where the courts GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITARY. Nuremberg Trials; Rules of War; Selective Service System; Solomon Amendment; Veterans Affairs Department; War; War Crimes. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION MILITARY LAW 67 . service of individuals who volun - tarily declare their homosexuality, but bars military personnel from inquiring into a service GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 62 MILITARY LAW member’s