Military Courts, Civil-Military Relations, and the Legal Battle for Democracy: The Politics of Military Justice by Brett J. Kyle and Andrew G. Reiter (review)

Although it might be tempting to conclude that military interference in democracy was a twentieth century phenomenon, coup activity and academic interest in military interference has seen a resurgence globally in the last decade.¹ In fact, civil-military relations was a prominent issue in the first half of 2021. In February, Myanmar’s military overthrew the civilian government. Six months later, military leader Min Aung Hlaing formally became prime minister and pledged elections would be held in two years.² Concerns about the Brazilian military’s loyalty to President Jair Bolsonaro instead of the state made headlines. Two decades ago, he publicly expressed support for a military takeover.³ Noting his expansion of the powers of the armed forces and packing of his administration with military personnel, observers worry that the military will step in to protect Bolsonaro from impeachment.⁴

Even in the United States, the role of the military in a democracy and military justice have been prominent issues. As of May, one in ten individuals charged with trying to disrupt Congress’ January 6 certification of the presidential election results were current or former service members.⁵ The military response to the violence and the role of Trump administration appointees and military officers in the unfolding events has come under intense scrutiny.⁶ Amidst monumental debates about how to address the coronavirus pandemic and the January 6 insurrection, Congress also spent a significant amount of time discussing reform of the military justice system.⁷

Academic interest in civil-military relations has a long history.⁸ Typically possessing a monopoly on the tools of violence, militaries are paradoxically often the greatest threat to and the strongest guarantor of democracy. Nonetheless, military courts have attracted comparatively little attention. In their new book, Military Courts, Civil-Military Relations, and the Legal Battle for Democracy: The Politics of Military Justice,⁹ Brett J. Kyle and Andrew G. Reiter make important contributions to perennial academic and policy concerns over democratic accountability by addressing this lacuna. In particular, they examine the legal constraints on the armed forces, both civilian and military, that promote legal subordination, which they define as “the degree to which military courts are subordinated to democratic, civilian control.”¹⁰

As Kyle and Reiter note, “the legal power of militaries has an oversized impact on the quality of democracy due to its intersection with multiple components necessary for democratic rule.”¹¹ Military justice systems serve a legitimate purpose in enforcing discipline. However, the democratic paradox is that “the military must answer to elected civilian authorities, but civilians must also respect a degree of military autonomy in order to avoid undue political influence over internal military affairs that could compromise the apolitical outlook of the institution and its members.”¹² Perhaps most troubling, military justice systems can insulate service members from accountability. For new democracies in particular, reining in military power is often critical. However, civilian governments may fear that doing so will spark a military coup, thereby derailing democratization. At the same time, failing to hold the military accountable for past human rights abuses may encourage violations in the future. For even well-established democracies, when faced with national security threats, democratic governments may cede more power to militaries. Addressing these weighty questions, the book will be of interest to scholars of civil-military relations, democratization, human rights, and transitional justice, among others.

The book addresses three major research questions. First, because legal subordination has attracted little attention, Kyle and Reiter endeavor to uncover global trends. Second, they seek to explain variation in legal subordination. Finally, they explore the relevance of legal subordination to civil-military relations, the protection of human rights, and ultimately the health of democracy.

Kyle and Reiter develop a typology of legal subordination based upon two dimensions of military court jurisdiction: who can be tried...