This week's US News and World Report leads with an article on the American military-justice system
. This article startled me with its inaccurate statements of fact and law, and its taking of quotes out of context. I went through the piece and summarized the most egregious errors in the analysis below. I'm not naïve enough to think that US News will print a correction. However, I hope to my critique helps illuminate the truth about the military justice system. This system, though different from the civilian criminal system, is not as Draconian as US News would have its readers believe. Quote
: "At a moment when many of the 2.7 million men and women who serve in the active-duty armed forces, Reserves, and National Guard units may be called to put their lives on the line, it is an issue of particular urgency. Why is it, critics ask, that these men and women are governed by a system of justice that provides a standard of fairness inferior to that guaranteed to even the most hardened criminals who appear each day in America's civilian courts?"Analysis:
The line "standard of fairness" is inaccurate. In many respects, the military-justice is significantly more fair than the federal or state criminal systems. First, the caliber of defense attorney is far superior in the military system. JAG officers in the Trial Defense Service are better trained, better resourced, and have more access to prosecutorial evidence than even the federal public defenders. Moreover, the Military Rules of Evidence are as fair as the Federal Rules of Evidence, since they are 95% the same rules. (FRE rules become military rules by default unless the President or Congress specifically says no to a new federal rule being incorporated as a military rule.)Quote
: "The question is not without foundation. A six-month investigation by U.S. News has documented a flawed crim- inal justice system in which injustices can easily occur. Though the cases almost never make headlines, every day across this land, and at American installations abroad, the Pentagon's legal bureaucracy gears up and tries a soldier, sailor, marine, or aviator by court-martial. Many are guilty as charged. Almost all are first-time offenders. Overwhelmingly, the accused are enlisted men and women-not general staff or flag officers. The odds, overwhelmingly, are that the accused will be convicted."Analysis:
1. "Many are guilty as charged." Really? 96% of defendants charged in the civilian system are guilty too, so it should come as no surprise that a similar proportion get convicted in military court.
2. "Almost all are first-time offenders." Really? Maybe that's because the military discharges almost all felons at the end of their sentence, thus precluding any second-time offenders. Funny how the article fails to mention that.
3. "... the accused are enlisted." The odds are the enlisted will be prosecuted/convicted because they make up the majority of the service. And just as college-educated professionals don't make up the majority of civilian felons, the same is true in the military. Officers don't commit the majority of crimes. But when officers do commit minor crimes, like DUI, they're more likely to be hammered than EMs for the same offense.Quote
: "The law that governs the proceedings in the nation's military courts is the Uniform Code of Military Justice. Congress created the code 52 years ago to eliminate widespread injustices that occurred in court-martial proceedings through- out the nation's armed services in World War II. Lawmakers have not thoroughly reviewed the system in more than 30 years and seem in no mood to do so anytime soon. As a result, critics say, the code has failed to embrace key procedural safeguards available in civilian courts and to keep pace with the military justice systems of some U.S. allies, including Britain. "There is a shocking lack of interest on Capitol Hill,'' says Eugene Fidell, a Washington attorney and expert in military law. Kevin Barry, a retired Coast Guard captain and former chief military judge, is more pointed. "The code badly needs a face-lift,'' he says. "It either should be reformed, or it should be abolished.''"Analysis:
1. Regarding "key procedural safeguards," the military has embraced more of them thatnthe federal criminal system or states have. In many situations, the military has embraced these first. Case in point: Miranda warnings. The Supreme Court took the Miranda doctrine from Art. 31 of the UCMJ. Case in point: unlawful command influence. The military system forbids this, and appellate courts often reverse cases for it. The rule works a lot better in the military system than the 'ex parte contacts' rule in the civilian courts. Case in point: Art. 32 hearings. Unlike a civilian grand-jury proceeding, the accused gets to present evidence and make a case before the military equivalent of a grand jury, the Art. 32 hearing.
2. Congress created the code 52 years ago to fix the kind of subjective military justice this article seems to ask for. Commanders played even more of a role in courts martial during WWII, and justice was often swift and not quite fair. 2 million courts martial were conducted during WWII (in a population of roughly 16 million servicemen). The Draconian nature of that old system led a lot of former draftees to lobby Congress after WWII for a better system. They came up with the UCMJ. Today's military-justice system is regarded by practitioners as more fair than many states' criminal-justice system. Maybe US News should report that.Quote
: "Commanding officers, known as convening authorities, wield far more power than any prosecutor in any of America's civilian courts. They decide whether to prosecute a service member. They handpick jury members. They decide whether to approve, disapprove, or amend guilty verdicts and sentences issued by juries and military judges. Critics say the power to pick jurors is the Achilles heel of the system, likening it to allowing a prosecutor alone to pick the jury in a civilian case. Military appeals courts have criticized commanders for "unlawful command influence,'' or manipulating the process to convict an accused member. Despite those warnings, legal experts say, military lawyers have prosecuted only one command-influence case-and that was nearly 50 years ago."Analysis:
This is a fair criticism. Unlawful command influence is the biggest problem in the military justice system. And the power to pick jurors is probably one that ought to reside with military judges, not commanders. But remember: this is a system designed for wartime, not designed for peacetime. In either situation, you have a finite amount of prospective jurors available to a command. Military commanders don't have the luxury of voir dire where attorneys can interrogate each other and dismiss them for cause. Other goals, namely winning America's wars, have to come first. Personally, I'm comfortable with the military jury system, because studies have shown that these officers and senior NCOs actually pay more attention in court and apply the rules better than their undereducated and underemployed civilian counterparts (see, e.g., the OJ Simpson case). Quote
: "All the armed services have a real, if unwritten, double standard for criminal prosecutions. Military prosecutors can throw the book at enlisted men and women, but the services tread lightly when it comes to generals and admirals. Some have been disciplined and forced to retire, but the military has court-martialed only three general officers-two Army generals and an admiral-in the past 50 years. Says Glenn MacDonald, a retired Army major who runs a Web site, militarycorruption.com:"We call it 'different spanks for different ranks.' ""Analysis:
This is a real spin on the facts. The book almost always gets thrown at officers these days, especially for minor infractions like DUI, domestic violence or AWOL. Conversely, the book does not always get thrown at enlisted personnel
. These situations are almost always resolved with Art. 15 non-judicial punishment for enlisted soldiers, especially junior ones. But officers and senior NCOs always get the book tossed at them. True: officers and senior NCOs sometimes get to "Resign In Lieu Of" (RILO) court martial. But that's akin to the plea bargains given out in civilian court all the time, and it's a fair consideration for some senior officer or senior NCO with lots of service and one minor infraction. Quote
: "On paper, the Pentagon's criminal justice system is an impressive one. There are prosecutors, defense lawyers, and rules of evidence. In addition to appellate review courts for each service, there is a supreme court of sorts-a five-member civilian panel, the U.S. Court of Appeals for the Armed Forces."Analysis:
Here, the article just gets it wrong. The military-justice system actually has an additional level of review when compared to the civilian system. In the civilian system, you get the trial court (U.S. District Court), intermediate court of appeals (e.g. 9th Circuit), and then the Supreme Court - but only when they take the case. In the military, you get the trial court martial, then an intermediate court of review, then you get the U.S. Court of Appeals for the Armed Forces - equivalent to a 9th Circuit. On top of that, you still get the right of petition to the U.S. Supreme Court. The CAAF is not a "supreme court of sorts" - it is an appellate court that sits just below the Supreme Court. (However, it is an Art. II court, not an Art. III court, and this creates interesting separation-of-powers issues) This is a glaring error in the article, and it belies a lack of research or consultation with JAG officers and civilian lawyers who know how the federal judiciary is organized.Quote
: "Some commanders and their aides go too far, however, and unlawful command influence-what the appellate courts have called the "mortal enemy of military justice''-remains a touchy subject in the military legal hierarchy. In an October 2001 memo to subordinates at Fort Hood, Texas, Army Maj. Gen. Raymond Odierno laid it on the line: "Unlawful command influence continues to be an insidious problem in our military justice system and is of grave concern to me.''"Analysis:
Unbelievable. This quote from MG Odierno was taken completely out of context. First, this quote is from his command-policy memo on military justice, which FORBADE any unlawful command influence in the command. Second, that memo was not written in response to any incident or the climate under the previous 4ID Commanding General(now-LTG Ben Griffin) -- it was done as a pro forma matter. In fact, I served in that division headquarters in the Provost Marshal's shop, close to the military justice system. There were no unlawful command influence problems in that division headquarters. If ever there was a place with a strong SJA and no unlawful influence, it was the 4th Infantry division under then-MG Griffin. Quote
: "More often than not, investigations and prosecutions have little to do with military operations. The military still prosecutes personnel for conduct unbecoming an officer and a gentleman, for going absent without leave, for violating orders, and for disrespecting superiors. But it also prosecutes personnel for adultery and sodomy and for crimes like rape, child molestation, larceny, robbery, assault, burglary, and murder. Given service members' dependence on one another in the military, drug use is a one-way ticket to a dishonorable discharge, the brig, or the military's only long-term prison, the U.S. Disciplinary Barracks in Leavenworth, Kan."Analysis:
Really? Crimes like rape, child molestation, robbery, and murder have no effect on military operations? No effect on the bedrock of discipline that's so necessary to effective military organizations? This paragraph illustrates just how poorly the author understands the phrase "prejudicial to good order and discipline" which exists as an element in every UCMJ offense. Bottom line
: this is a poorly-researched and fact-checked article that should have been heavily edited before publication. It mischaracterizes the military justice in many places, and flatly misstates the facts and law in others. The old proverb that "military justice is to justice as military music is to music" may be true. But that's not to say the system is unjust -- just that it is different.