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May|June 2002
Bum Rap By Christopher Hawthorne
Shoddy Construction By Benjamin Wittes
Kenneth Starr Responds By Kenneth Starr
Chains of Command By Beth Hillman
Silence! By David Luban
No Exceptions? By Michael Ignatieff

Chains of Command

The U.S. court-martial constricts the rights of soldiers—and that needs to change.

By Beth Hillman

Last november, when the White House announced that the United States would use military tribunals to try suspected terrorists, the Bush Administration assured the public that the tribunals would not be kangaroo courts, but fair trials modeled on the U.S. court-martial. In The New York Times, the White House counsel Alberto R. Gonzales described the American military-justice system as "the finest in the world" and praised its "longstanding traditions" of procedural fairness. But the public-relations effort was not a success. It soon became clear that the rules proposed for governing military tribunals did not offer as many protections as those provided to U.S. service members. Many critics, like the Bar Association of the District of Columbia, asked the White House to fulfill its promise of meeting the court-martial standard.

Other countries seem to agree. Over the last decade, external review by civilian courts abroad has led to important reforms in several other military-justice systems. Five years ago, the European Court of Human Rights ruled that the United Kingdom's court-martial system—on which the U.S. system is based—violated the European Convention for the Protection of Human Rights. A decade ago, the Canadian Supreme Court held that comparable military tribunals in Canada violated the Canadian Charter of Rights and Freedoms. In both cases, the higher courts argued that the unchecked power of military commanders—power that U.S. military prosecutors continue to wield—made military trials neither independent nor impartial. In response to those rulings, both the U.K. and Canada greatly reduced the role of the commanding officers in the trial process. Similar reform is underway in the military courts of many other nations, including South Africa, India, Australia, and Mexico.

Because the United States prides itself on being a rule-of-law nation, it may come as a surprise that it lags behind other countries in court-martial reform. But the hard truth is that American military justice has long been overlooked by otherwise attentive critics and reformers of this country's legal system. No external task force has been appointed to review the fairness or wisdom of military justice for more than a generation, since 1971. No Congressional hearings have been devoted to a full study of military justice since at least 1972. Even when criminal investigo Congressional hearings have been devoted to a full study of military justice since at least 1972. Even when criminal investigations involving the military have garnered public attention—the 1991 Tailhook scandal involving sexual misconduct, for instance, or the 1997 investigation of Air Force officer Kelly Flinn's sex life—critics have been drawn by concerns about the nature and w workings of military culture, not matters of procedural justice.

It's time for this to change. Leaving military justice to its own devices does a disservice to the country's service members. And permitting American courts-martial to fall below standards met by the rest of the world invites diplomatic problems, since American military missions are increasingly conducted in cooperation with service members of other nations. Ironically, the military may have the highest stake in reform. Though its leaders have historically resisted changes to court-martial procedure and objected to civilian oversight, responding to external criticism will best serve their cherished autonomy. As Col. James A. Young III, a senior judge on the Air Force Court of Criminal Appeals, has noted, the congressional silence on military-justice issues won't last forever, and legislators may eventually "impose change from outside." If the armed forces want to protect their independence and continue to have a say in the operation of their justice system, they need to demonstrate that they deserve the deference so often shown to them. They can do that by making the elementary reforms that the court-martial system badly needs.

The fundamental tension that shapes court-martial procedure is that military justice is expected to enforce military discipline as well as to dispense justice. These two mandates can work at cross-purposes. Military stalwarts argue that in order to enforce discipline courts-martial must directly involve higher-ups and permit commanders to make important decisions about how to punish their troops. But it is precisely the enormous discretion and influence of commanding officers that prejudices military trials.

To begin with, commanding officers are remarkably free to use their power to prosecute as they see fit. Unlike civilian criminal jurisdictions, where the authority to prosecute ultimately rests in the hands of a single appointed or elected attorney, the authority to prosecute at court-martial is dispersed throughout milittary commands that entertain drastically divergent ideas about when and how the law ought to be applied. Any transgression—even as minor as a sailor returning from shore leave a few hours late—can lead to a wide variety of results, ranging from no punishment under the watch of a lenient commander to a court-martial conviction under a severe one.

In addition, protections for the accused are threatened by the lack of a sharp distinction between the interests of the commanding officers and the interests of the judges, defense attorneys, and jury members. Accused service members are represented at no cost by a judge advocate, or military lawyer. But because judge advocates are part of the military chain of command, many of the accused have reason to doubt the independence of the lawyers detailed to them, and defendants who can afford to often retain civilian attorneys as well. The judges who preside at trial are also part of the armed forces; they are (at least potentially) targets of retribution if their rulings prove unpopular. All military judges lack life tenure, and many don't even have a fixed term of office.

Court-martial juries are comprised of military personnel selected by the commander who ordered the prosecution. Commanders can intentionally pick sympatthetic jurors, but they can also prejudice a jury in more subtle ways. A commander who, for instance, promises to get tough on first-time drug offenders risks sending a peremptory message to his troops: Any- one who serves on a jury that fails to convict an alleged drug offender will be viewed with suspicion, or even reprimanded. The Servicemembers Legal Defense Network has compiled many examples of commanders whose words and actions corrupt the administration of military justice. No one, for instance, has held any military leader accountable for making a comment like that of Marine Lt. Col. Edward Melton, who mocked the brutal murder of Private First Class Barry Winchell, a gay soldier beaten to death with a baseball bat by a fellow soldier in July 1999.


Service members do have recourse to civilian oversight: They can appeal convictions through several layers of courts, culminating in the Court of Appeals for the Armed Forces, a five-judge civilian court that considers cases from each of the services. And there are provisions for criminal prosecution for undue command influ-ence, although no commander has ever been prosecuted for that offense. Despite the protests of service members who have felt railroaded by biased commanders, the armed forces have not changed their practice of involving commanding officers in every aspect of military criminal justice.

The U.S. court-martial has not always been as widely ignored by critics aas it is today. Before the end of World War II, courts-martial were treated primarily as tools of discipline, not forums of justice. With the development of the standing armed forces during the Cold War, that practice was forced to change. Veterans and lawmakers, many of whom had experienced military justice firsthand during the world war, felt that an arbitrary, ad hoc system of summary punishment was not sustainable for extended periods of peacetime military life. In 1950, Congress adopted the landmark Uniiform Code of Military Justice.

The UCMJ was a far-reaching statute that set a worldwide standard for procedural fairness in military trials—establishing a baseline of rights for service members accused of crimes, limiting commanders' control over the outcomes of courts-martial, and creating the civilian court for court-martial appeals. But though the UCMJ made great strides toward a fairer system of criminal justice, it did not eliminate the central role of commanders, since that role was considered essential to maintaining discipline among service members.

During the 1960s, civilian oversight over military justice only increased. Prompted by a public keenly aware that the draft brought many non-volunteers into military service, lawmakers drafted nume numerous pieces of legislation that concerned issues of military justice: At one point, Congress was simultaneously considering 18 competing pieces of legislation about military justice. The NAACP also lobbied hard for reform, having first learned about the liimitations of the system through work on hundreds of troubling cases involving courts-martial of African-Americans during and after World War II. The future Supreme Court Justice Thurgood Marshall spent five weeks with U.S. troops during the Korean War to iinvestigate allegations of racism at court-martial. He concluded that "even in Mississippi a Negro gets a trial longer" than those of many convicted black soldiers.

The Supreme Court was also prompted to supervise courts-martial. In a series of well-known decisions in the 1950s and '60s, the Court refused to extend court-martial jurisdiction to include non-service members, frustrating commanders who sought control over civilians accompanying military personnel overseas. In 1957, in Reid v. Covert, the court overturned the convictions of two civilian women who had been found guilty at court-martial of murdering their husbands, both of whom had been service members. In that case, the court held that civilians could not be subjected to the lesser protections of military criminal justice, even if it was not possible to try them in another criminal forum. In 1969, in O'Callahan v. Parker, the court restricted the kinds of crimes that could be tried at court-martial to "service-connected" crimes, excluding from the military's jurisdiction criminal acts by service members that took place off of military grounds and involved neither military duties nor other service members.

After the Vietnam War, however, civilian oversight of military justice virtually disappeared. In part, this was because external pressures on the military diminished. The atmosphere of widespread skepticism and protest that surrounded the war had faded, and the public no longer subjected the military to the same levels of scrutiny to which it had become accustomed. In addition, the switch to an all-volunteer military force in 1973 meant that critics could no longer accuse the military of subjecting soldiers to a system of justice they had not implicitly accepted.

Equally important to the demise of civilian oversight was the further development of resistance within the military. The military leaders who came of age professionally during and just after Vietnam—when the military blamed civilian distrust and mismanagement for the war's failures—were especially reluctant to trust the insight of outsiders. These leaders also came of age in a military of unmatched size, strength, and sophistication, and often viewed that distinction as groundse unique in the world, and often viewed that distinction as grounds for an exemption from the rest of the world's moral and ethical standards.

The services have now grown accustomed to being left alone by civilian authorities on matters of military justice. The Supreme Court has been reluctant to exercise judicial review over the armed forces ever since now-Chief Justice William Rehnquist's 1981 opinion upholding the male-only draft. By 1987, the Court had struck down the restrictions on the jurisdiction of courts-martial that it had imposed two decades earlier in O'Callahan. By 1994, when the Court upheld the military's system of appointing judges, even the liberal Justice Ruth Bader Ginsburg was lauding the courts-martial as "notably more sensitive to due process concerns" than under past military regimes. The Court has also deferred to the armed forces on many questions of criminal procedure.

The Court's deference has left the oversight of military justice to Congress and the White House, both of which possess greater power than civilian judges to alter military legal practice. But neither of those branches of government has shown much interest in reforming military justice—or even in studying the possibility that change might be warranted. Congress commemorated the 50th anniversary of the UCMJ in the 2001 National Defense Authorization Act, but it did nothing to examine the sort of justice that takes place under the code's auspices.

By kowtowing to the military's own conception of its ability to handle matters of justice, the government leaves the military free to do as it likes. Unfortunately, though some military lawyers have advocated and sometimes accepted changes to court-martial practice and procedure, most have been blind to the fundamental problems that plague their judicial system.

Last September, I experienced firsthand the difficulty of convincing the military to change its justice system. I had drafted the report of the Cox Commission—an independent group convened by the National Institute of Military Justice, a nonprofit organization—to study the military criminal justicccccent group convened by the National Institute of Military Justice, to study the military criminal justice system. The commission's five members—all with years of experience in military law—solicited public comments and invited presentations at a public hearing held at George WashinggWashing public hearing held at George Washingc hearing held at George Washington University.

In the end, the report recommended that the role of the commanding officers who convene courts-martial be considerably reduced, and that the commander who presses charges against a service member no longer be responsibible for the selection of jurors. The commission also recommended that the authority and independence of military judges be increased by granting them guaranteed terms of duty, so that they cannot be removed summarily if they reach decisions that are unpopular with their military superiors.

As the commission's reporter, I was asked to summarize these and other recommendations at a conference of military judges and lawyers. I hoped for an interested, or at least tolerant, response, since in any respects the recommendations offered the armed forces palatable solutions to problems that have proved the biggest targets for critics of American military justice. For example, the commission refrained from criticizing convening authorities for actually abusing the system, choosing instead to explain that the current practice of panel selection "is an invitation to mischief" that undercuts public faith in the fairness of courts-martial. Nonetheless, my remarks at the conference were greeted with disdaian. As I presented a series of slides that outlined the goals and recommendations of the commission, the mostly blank stares and dearth of questions from those in attendance suggested that few had bothered to read the report, which had been distributed some months before.

When the military judges and lawyers present did raise questions, they criticized the commission as a group of "outsiders." This was telling, for it was true only in the sense that the commissioners were no longer part of the closed circle of active-duty judge advocates. The commissioners included former Army, Navy, and Air Force officers and a former Judge Advocate General of the Navy; I myself spent seven years on active duty in the Air Force before leaving the service.

It is foolhardddrdy for military judges and lawyers to disregard the recommendations of a group as experienced and familiar with military justice as the Cox Commission.The commission gave a voice to the concerns of many Americans with real grievances about the way military Its recommendations don't require the dismantling of the current court-martial system, but merely the implementation of a set of reasonable reforms that few outside observers could disagree with—and that many military lawyers themselves believe to be prudent. This is surely more appealing to the military than the prospect of intervention by Congressional leaders, which is the military's alternative fate.

For half a century, the United States has assured Americans in uniform that they do not lose the protection of the Constitution when they swear to defend it with their lives. Throughout that period, the reality has often belied the rhetoric. The current situation is especially worrisome, because the war on terrorism has given military justice a wider reach and more visibility than any other instrument of American law. As the American version of military justice is exported around the world, it is crucial that we bring court-martial procedure into line with international norms of criminal justice. Granting Americans in uniform the due process of law, and the same protections that we grant to accused civilians, is the only way to do that.

Beth Hillman is an assistant professor at Rutgers School of Law-Camden.

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