Defending America by Elizabeth Lutes Hillman

Author:Elizabeth Lutes Hillman [Hillman, Elizabeth Lutes]
Language: eng
Format: epub
Tags: Nonfiction, History, Military, Other, Americas, United States
ISBN: 9780691224268
Publisher: Princeton University Press
Published: 2021-02-09T05:00:00+00:00

AFTERWORD

The end of the draft in 1973 signaled a new era in the history of the American armed forces and in military justice. Young men were no longer impressed into service, and commanding officers no longer had to answer the daunting question of how to control reluctant, rebellious servicemen.1 Americans chose to enter military service for economic, professional, and ideological reasons, not because their government forced a duty of citizenship upon them. The conflict between coerced service and individual liberty receded, even though draft registration continued to be a requirement of male citizenship.

But the advent of the all-volunteer force did not alter the basic makeup of the military or its justice system. The class and racial demographics of the military changed only slightly. The military remained an important source of economic opportunity for those from less privileged backgrounds, and the percentage of women rose but then stalled at around 15 percent.2 The self-selected group of Americans drawn to military service lent military culture an increasingly reactionary bent, helping to preserve a masculinist military tradition even in the presence of larger numbers of servicewomen.3 Likewise, the structure of military justice did not change dramatically after the Vietnam War. The UCMJ continued to protect the authority of commanding officers to prosecute at will.4 Military judges remained marginally independent at best.5 Commanders both ordered prosecutions and selected the court-martial panels that adjudged guilt or innocence.6 Individualized sentencing, unrestricted by the guidelines that so altered the civilian criminal sentencing process, continued to be the rule at court-martial.7

Military criminal law and procedure changed relatively little in the late-twentieth century.8 The rules of evidence were codified in 1980 to resemble the federal rules; the Manual for Courts-Martial doubled in size; and the benchbook distributed to military judges grew longer and more complex. The path to the Supreme Court was made more direct in 1983, when Congress amended the UCMJ to permit petitions for a writ of certiorari to the Supreme Court in cases heard by the military’s highest court.9 While the structure of military justice remained largely intact and the rate of court-martial low, military lawyers were asked to handle increasingly specialized and complex legal duties.10 As a result, judge advocates spent less time on courts-martial and garnered less experience in criminal justice matters than their predecessors.

While the internal practice of military justice stagnated, the U.S. civilian judiciary grew increasingly deferential to the armed forces, beginning in the 1980s.11 This trend made military leaders bolder in asserting jurisdiction and limited servicemembers’ opportunities for legal remedies. In the 1950s and 1960s, the Supreme Court had restricted court-martial jurisdiction, holding that the Constitution did not permit courts-martial to try civilians or to try crimes unrelated to military service.12 The Court reversed itself in 1969 and did not look back; by the 1980s, military crimes no longer had to be “service-connected” and both the UCMJ’s sweeping “catch-all” statutes and the policy of registering only men for the draft were granted constitutional legitimacy.13 The frequent hearings that Congress held during

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