Who is Subject to Jurisdiction of the United States Military Court Martial by Michael Waddington

Who is Subject to Jurisdiction of the United States Military Court Martial
by: Michael Waddington

Military Jurisdiction

Generally, court martial jurisdiction is only exercised over active service members.1 As long as a service member is on active duty, he or she is subject to the UCMJ. Jurisdiction normally ceases when the service member receives a valid discharge certificate. A Reservist is only subject to court martial jurisdiction when the offense was committed while on active duty or in an inactive duty training status. Meanwhile, Army National Guard of Air National Guard personnel are only subject to the federal military justice system while they are performing federal service.2

Worldwide Jurisdiction

The UCMJ has worldwide jurisdiction.3 The system was designed to travel anywhere the American military deploys. Currently, in Iraq and Afghanistan, courts martial proceedings are conducted in a variety of settings, depending on the space availability and mission requirements. It is not uncommon for a court martial to be conducted in a large tent, or in a dingy building once used by Saddam Hussein's forces. Depending on the location, court martial participants, except for the defendant, may have their weapons close at hand.

In Cases of Joint Jurisdiction, Who Will Prosecute

Commonly, both civilian and military courts have jurisdiction over an offense. In this situation, military authorities must coordinate with the state and federal prosecutors to determine who will prosecute. Although rare, a service member may be prosecuted in state court and in military court for the same offense, with certain limitations. However, the U.S. Constitution's double jeopardy clause protects an accused from being prosecuted in military and federal court for the same offense.4

Additionally, an American service member may be tried by a foreign country for offenses committed in that country, unless the country has an agreement relinquishing jurisdiction to the United States. Such an agreement is call a status of forces agreement (SOFA). The United States has SOFA agreements with the majority of countries where the nation's military operates.5

1. Articles 2 and 17, U.C.M.J.
2. Article 3 U.C.M.J.
3. Article 5, U.C.M.J.
4. Schlueter, David A., Military Criminal Justice: Practice and Procedure, (6th ed. 2004), at 238-40.
5. Id. at 241-42.

About The Author

Michael Waddington is an experienced court martial lawyer and criminal military defense attorney. He is a partner in the Augusta, Georgia, law firm of Waddington & Gonzalez. His worldwide practice focuses on military criminal court martial cases. http://www.ucmjdefense.com.