Death of Military Justice

摘要

Buried within the National Defense Authorization Act for Fiscal Year 2011 was a provision offered by Mr. Patrick Murphy of Pennsylvania to repeal Section 654 of Title 10 US Code, the so-called 'Don't Ask, Don't Tell Policy.' Advocates and the American media see the repeal as a minor matter limited to admitting open homosexuals to military service. On December 19, 2010, the Senate voted to end the 'Don't Ask, Don't Tell Policy.' This is precedent setting in that neither the House of Representatives nor the Senate held hearings to assess the impact of Section 654's rescindment in its entirety. Unfortunately, despite its title, 'Policy Concerning Homosexuality in the Armed Forces,' the section contains important military policy that extends well beyond the narrow issue of homosexual eligibility for military service. The repeal of those provisions will radically change the American system of military justice and discipline. Congress failed to wait on the Department of Defense's report regarding the repeal of Section 654. Thus, the report will have no power to mitigate the effects, because to restore or retain portions of Section 654 is to argue against the repeal and reveal that its repeal is improvident. With the repeal, the US military services will enter a litigious period of indiscipline. To understand why repealing Section 654 will radically alter the system of military justice and discipline, it is first necessary to examine the Section 654 findings. The findings were not only drawn from the testimony presented in the hearings before the House Armed Services Committee in 1993 but also from appellate and Supreme Court rulings on matters of military law. Congress appended the findings to ensure that the policy enacted in 1993 would withstand constitutional challenge and based the findings on Congress's exclusive constitutional power to make rules for the government and regulation of the land and naval forces.