United States Supreme Court & the Culture of Courts-Martial: The Need for Structural Changes

If we are truly the product of our past experiences, then this article is the sum of an almost 30-year study of court-martial practice, society's view of it, and the judge advocates who dedicate their professional careers to it. During this period, the author had the opportunity to observe military justice from many vantage points, both civilian and military. In 1975, after three years as a trial counsel and a defense counsel, he was assigned to the United States Army Government Appellate Division, then at Falls Church, Virginia. For the ensuing three years, the author had the luxury of examining the law to see not only how it affected the legal issues litigated, but how it defined the social and political climate within which our court-martial system operated. From Government Appellate Division (GAD), the author went to Charlottesville and the Army's Graduate Legal Program. Thereafter, he remained on the JAG School Criminal Law Faculty and continued studying and writing about these topics. In its essence, this short article is about the United States Supreme Court and Court of Appeals for the Armed Forces cases first encountered during the author’s endeavors at GAD and the Army JAG School, and what those cases say about our military justice system. More precisely, this article looks at the very negative view the Supreme Court had of the court-martial system, and what they have done and can do in the future to improve upon that view.The arguments made here are taken from the presentation at the Air Force JAG School's 50th Anniversary Symposium on the Uniform Code of Military Justice (UCMJ). Those comments focused on 50 years of Supreme Court and Court of Appeals for the Armed Forces (CAAF) opinions which discussed military law and military lawyers and on what can and should be structurally done to eliminate the three areas of court-martial practice which stimulate the legitimate criticism of their system:1. Articles 22 and 23, which locate all prosecutorial discretionary powers in commanders, and2. Article 25(d)(2) which requires those same commanders to hand-pick court members who will sit as finders of fact in the same cases they have decided should go to trial, and3. Article 32, which takes the place of grand jury proceedings. Particularly today, in this time of change, when the Services are encountering recruiting and retention challenges, when our criminal justice system is receiving increased scrutiny by the United States Supreme Court and other civilian institutions, and when all the definitions and preconceived opinions concerning national security are being recalculated, it is important that military lawyers and the court-marital system in general be evaluated accurately and fairly so that our credibility as lawyers within the military and within the legal professions will continue to grow, and as a result, the level of our contribution to national security will also be allowed to grow.