Military Law In The Times Of War

(March 2005)

Marguerite “Mugs” Helen and Neil Berman, issue editors, write:

United States military activity is increasing at an alarming rate, and the legal needs of the members of the military are increasing as well. This has created a similarly rising need, within the peace movement, for military counselors and lawyers to assist service members. Thus, this issue of Mass Dissent will address conserns of those who deal with military law.

The military has lawyers under the Judge Advocate General (JAG) office; they both prosecute and defend military personnel, and advise military personnel. The JAG officers are severely undermanned and, even in the best of times, do not provided adequate advice and information to soldiers concerning their rights.

During the Vietnam war, when many in the military were draftees, the NLG began to develop coffee houses for outreach, to let soldiers know of their rights. In the aftermath of the Vietnam war the military became a volunteer force, and as U.S. military adventurism slowed, the demand for legal information also slowed. When Gulf War I began in 1991 the Guild, among others, began to get calls from soldiers asking questions about their rights. Some of the lawyers from the Vietnam era formed the NLG Military Law Task Force (MLTF) and, working with other organizations, developed a hotline and other mechanisms to begin responding to these questions. You can find the history of this NLG committee in the artcle by Marti Hiken.

The military, as with any large organization, has set up its own rules and regulations which are designed to help it further its own needs. The military has codified its law in the Universal Code of Military Justice (UCMJ) and it additionally has regulations promulgated by the Department of Defense and each military branch. One difference that practicing lawyers will appreciate is that the military will always follow their regulations. Most commanding officers do not know the regulations and often the primary job of a military lawyer is to wave the regulations in the faces of commanders. Jim Klimanski’s article explains the UCMJ procedures and some of the differences between it and civil legal practice.

During the 1992 election, the issue of gays in the military resulted in the “Don’t Ask, Don’t Tell (DADT) policy. Prior to that time, gays were not allowed in the military. DADT changed this to allow gays in the military as long as they remained closeted. If a person declared themselves gay the regulations required their honorable discharge. DADT also created a system for investigation, in cases where a soldier’s activities created the perception that they might be gay. This policy has created many confusions and continuing adjustment. Steve Ralls writes in this issue about one local lawsuit concerning DADT and its effects on military personnel.

The MLTF works closely with the GIRights Hotline. The Hotline is staffed mainly by counselors without legal training, with the support of military lawyers who are called when legal questions arise or representation is needed. The Hotline is managed by the Central Committee for Conscientious Objectors in Oakland, and the New England Hotline is based out of the Cambridge American Friends Service Committee offices. Sam Diener describes, from a counselors perspective, and J. E. McNeil does the same, from an attorneys perspective, this work, including the interaction of counselors and attorneys and the positive effects and fulfilling experiences of this work.

The need for lawyers to understand military issues and assist soldiers is growing rapidly as the mission of the military has expanded. This expansion has strained the MLTF, which is always looking for lawyers to help fill the need in this growing legal field. Many lawyers feel unqualified, though with minimal training they can master the UCMJ, and the MLTF offers trainings upon request. If you are interested in this training and type of representation, please contact the MLTF or the co-editors of this issue.

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