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Military justice has spent much of the past few years under fire—from the real-life questions regarding the Tailhook investigation to the unflattering portrayal in “A Few Good Men.” To restore confidence, the Navy must address several systemic features, including command influence and judicial independence.
For more than two years, the military justice system has been under the most intense scrutiny in memory—perhaps since its inception more than 40 years ago. The unsettling revelations of Tailhook 1991 led to even more unsettling questions about the Navy s ability to respond fairly and appropriately to both suspects and victims. Strong words and actions have been addressed to the leadership issues raised by the scandal, but far less attention has been paid to the systemic shortcomings in the military justice system.
It is time for our leaders to recognize that part of the problem facing the Navy—and the rest of the services as
well—is inherent in the very military justice system upon which all the services rely to enhance discipline and ensure justice. Both the military’s and the public’s confi' . dence in our ability to discipline ourselves has been eroded, and decisive action is required to reverse the growing disillusionment.
The Historical View
There was a time when rulers ruled absolutely, when the only justice was that dispensed by the sovereign, and justice and discipline were indistinguishable. “Command influence was the only rule. Over a period of hundreds of years, civil and military tribunals came to be clearly separate, and military jurisdiction became more defined and limited. Through the 17th and 18th centuries, as
courts-martial became defined formal military tribunals, rules ol due process began to be developed and applied, and courts-martial began to change from institutions of command orientation to courts of law.1
In the earlier phases, the main purpose of military authority was clearly discipline in the forces. Thus, passing judgment was the sole realm of the commander. Even after courts-martial were well established, great discretion in
judging process remained with the commander, who gained authority to select the accused and the charges, ”e type of court, the persons who would sit on that c°tirt, and the persons who would serve as counsel. After e trial, the commander would review and act on the re- su,ts and order the punishment to be imposed.
Such broad power was exercised well into the modern era- In the late 19th century, the U.S. court-martial was stl'l primarily an “instrument of the executive department 0 be used in maintaining discipline [and] not a ‘court,’ ^ that term is normally used.”2 It was not until World . ar II, as many ordinary citizens entered service, that ’SSUes of command influence and fairness began to sur- ,ace more frequently. After the war, the outcry over injustices in courts-martial was heard by Congress, many uternbers of which were recent veterans. For example, in "49, then-Congressman Gerald Ford testified that he:
[Rjecalled hearing conversations among members of courts-martial during his several years in the navy along this line: What does the Old Man . . . want us to do?” Ford concluded that all too often such individuals were concerned less with determining guilt or innocence than “with what the captain of a ship, or the commanding officer of a station, wants done with the wan. . . .1 also participated in various courts-martial; and the whole system is fundamentally wrong; and I aro particularly pleased to see something being done about it.”3
Congress responded, and the modern military justice system was established under the Uniform Code of Mil- ltary Justice, enacted in 1950. It was a huge—but clearly evolutionary—development: it brought uniformity to the JUstice/discipline process in the five services and estab- ushed a civilian court, the Court of Military Appeals, to °versee and ensure the integrity of the system.
Under the new code, courts-martial developed more and roore as courts of law. As the concept of due process con- hnued to develop in civilian jurisprudence, there was a Parallel development in the military context. Discipline '''as one thing—an indispensable thing—but less and less could it be accomplished at the expense of justice.
In 1968, less than 20 years after the Uniform Code of Military Justice was established, Congress made the first roajor changes. A new actor in the court-martial process, the military judge, was created and placed in a position pf authority in courts-martial comparable to that of a civil- lan judge. The services’ “boards of review” were similarly recast as “courts of military review,” with appellate roilitary judges. Lawful command influence persisted in roany of the commander’s prerogatives, including exerting prosecutorial discretion in deciding who to charge and with what charges, in selecting the members of the c°urt, and in taking action on the record. The commander—referred to in the statute as the “convening author- 1[y”—even continued to select the judge and the counsel, but control of the court martial process would from then °n be limited and justice enhanced by the presence of lhe military judge.
Fifteen years later, in 1983, Congress again amended the code, streamlining certain procedural aspects of the
court-martial process that had been found burdensome (although in the process it reduced some of the protections inserted by the original drafters in 1950). At the same time, Congress acknowledged growing concerns over the fairness of the system and over the effectiveness of some of the 1968 reforms, and raised (but did not decide) certain issues, including whether military judges should have terms of office to enhance their independence. Those issues persist. Concern for the independence of the military judiciary has been at the forefront of challenges to the fairness of the system in recent years and forms the basis for the issues currently pending in the Supreme Court.4
Concerns for the military justice system’s ability to function as a true criminal justice system, free from the “mortal enemy” of command influence, form the basis for most of the challenges it now faces.5 The system’s vulnerability to such challenges lies in its structure, which has seen only minor modifications (and no in-depth evaluation) in the 25 years since the last major revision. It is a system which, in critical aspects, no longer meets the standards and expectations established by the developing currents of due process. The Navy and the other services must respond intelligently and innovatively to those challenges if confidence is to be restored. It is now appropriate to consider “reinventing” military justice, by determining the practical demarcation point between discipline and justice and by restructuring those systemic features that have left the system so vulnerable to challenge and to the appearance of unfairness.
> Justice or Discipline. In 1991, military law scholar David Schlueter was invited to give the 20th annual Hodson Lecture at the Judge Advocate General’s School in Charlottesville, Virginia. His lecture—“must” reading for anyone considering reinventing military justice—is entitled “Military Justice for the 1990s—A Legal System Looking For Respect.”6 Although Schlueter discounts much of the criticism that has been leveled at the system over the years, he does recognize that there are some aspects of the system that deserve scrutiny.7 The first is the fundamental question of whether the purpose of military justice is justice or discipline.
Schlueter addresses the question from both a substantive and an appearance perspective and from each view reaches the same conclusion: While justice and discipline are both indispensable and inseparable, a court-martial nevertheless promotes discipline only to the degree that it fulfills its function as an instrument of justice. He cites a 1960 Army report that concluded “[OJnce a case is before a court-martial, [the] sole concern is to accomplish justice under the law.”8 It is Schlueter’s own conclusion that “as long as discipline even is listed as a goal or purpose for military justice,” the unacceptable specter of the justice system being a “rubber stamp” for the commander would live on.9
Military commanders can best enhance discipline through the wise and even-handed use of nonjudicial punishment, wherein they retain the power to personally determine the outcome, and through the judicious exercise of their prosecutorial discretion as the convening author-
ities in referring cases to courts-martial. Once referred, however, any appearance of continued influence by the commander—or by the commander’s legal adviser or staff—not only violates justice but also demeans discipline. Such appearances are anathema, and the system needs to be restructured to eliminate even the potential for them to arise.
>• Judicial Independence. On 3 November 1993, the Supreme Court heard argument in the case of United States v. Weiss.'0 At issue were whether military judges are properly appointed under the Appointments Clause of the Constitution and whether due process requires that they have terms of office as one of the indicia of independence. Issues of independence of military judges overlay a more fundamental question: Are military judges real judges? Indeed, are military courts real courts?
In 1988, those questions were graphically presented when the Judge Advocate General of the Navy ordered the judges of the Navy-Marine Corps Court of Military Review to stand by to be interrogated by the Department of Defense Inspector General concerning their decision against the government in a very controversial case." The Judge Advocate General is the officer who not only appoints appellate military judges but also serves as their reporting senior. The judges of the court, in an action which might have appeared to some as either mutiny or gross insubordination, immediately sought a writ from the U.S. Court of Military Appeals to allow them to refuse the order and to follow their sworn duty as judges to maintain the secrecy of their judicial deliberations. The Court of Military Appeals held that the Navy-Marine Corps Court of Military Review was a real court, established under Congress’s power to make rules for the government of the land and naval forces, and issued the writ protecting its judges and their judicial function.12 Nevertheless, the appearance of intimidation was unavoidable.
Military judges are real judges, but they lack many of the key attributes of judges. They serve at the will of the Judge Advocate General, the officer who appoints them. They serve without terms of office, and while serving they receive officer evaluation reports, which are crucial to future promotions and assignments. They are frequently drawn from the ranks of staff judge advocates and often aspire to return to that job—or to positions on the staff of the Judge Advocate General—all of which are seen as career-enhancing assignments. Because staff judge advocates are legal advisers to convening authorities and participate in the exercise of prosecutorial discretion, they are, de facto, the services’ prosecutors. Thus, judges sometimes appear to be drawn from the ranks of prosecutors, and aspire to future assignments again as prosecutors. When this unwholesome appearance is coupled with constantly circulating reports of judges who feel they have been “burned” as a result of their judicial decisions, the result is a military justice system that can be viewed as subject to command control—and thus unjust.
This issue is of fundamental importance to the integrity
of the military justice system. Terms of office alone, hoW' ever, despite the protection they would afford, are no1 themselves sufficient to resolve the problem. At the 199-1 Judicial Conference of the Court of Military Appeals. Judge Walter T. Cox III questioned whether it was time for a new vision within the military justice system. Per' haps, he said, there should be a separate judiciary, ap' pointment to which would be highly selective and highly desirable. Once appointed, the judge would never aga'D serve outside the judiciary or receive a fitness report and would be guaranteed promotions through (at least) 0-6 and retirement after a full career. Judge Cox’s vision is a good starting point for a discussion that will be needed no matter what decision is rendered in Weiss, and it would by h' self go far toward enhancing the integrity—and the ap' pearance of fairness—of our system.
>■ Defense Counsel. One of the hallmarks of our system is that every accused, indigent or not, receives a “free” mil' itary lawyer. If that lawyer is not seen as an effective and aggressive advocate, however, public confidence in the fairness of the system drops—sometimes to the point where the results of trial are deemed unreliable. Issues of effeC' tive assistance of counsel are avoidable with proper training, care in assignments, and an organization that enhances defense counsel independence. Unfortunately, the services are remarkably inconsistent in their approach, with the sea services (especially the Navy) being particularly vulnerable to criticism.
Almost 20 years ago the Air Force recognized an appearance of evil in the way counsel were organized and assigned. At that time, it was customary in all the services for all counsel—both trial counsel (for the government) and defense counsel (for the accused)—to be assigned to the office ot the staff judge advocate (the same officer who assists the convening authority in exercising prosecutorial discretion). Recognizing that defense counsel ought not work in the same legal office as the trial counsel or be reported on by a common superior (particularly one who was the alter ego of the convening authority), the Air Force established an independent trial defense service. Ever since, trial defense counsel work for other defense counsel and are independent organizationally—and for reporting purposes—from the prosecution function.
The Army initiated a similar system about ten years ago. The Coast Guard and the Marine Corps have taken some steps toward separation of defense counsel, although cases still arise where prosecutors and defense counsel work in the same legal offices or are supervised and reported on by the same staff judge advocate.
The Navy alone, however, has institutionalized a most unwholesome situation by establishing the Navy Legal Service Office organization. All counsel assigned to courts-martial duty, both trial counsel and defense counsel, are stationed at Navy Legal Service offices. These generally are relatively small legal offices in which all attorneys work for and are reported on by one commanding officer. By virtue of the organization, defense counsel at courts-martial necessarily oppose another
... if someone had to lose because of inexperience or ineptitude, it should be the sovereign, and not a possibly innocent accused.
To make matters worse, it has been a common practice
ass>gn newly commissioned attorneys, fresh from the
» . o “VIMJ VWU11UI001011VU UllV/ltlVJ O) 11
aval Justice School Basic Course, to defend
Ts- In addition, once assigned to defense, they normally ^ll be on their own. These inexperienced attorneys might andle—as their first cases, without assistance—major elony cases where the maximum punishment can exCeed normal life expectancy. They will be allowed to represent the government only after gaining substantial court- r°°m experience as defense counsel.
No law firm in this country ethically could represent i sides of a case—even a minor civil matter. Nor would aw firm risk placing a brand-new junior associate with- °ut actual criminal trial experience into a major felony case as “first chair,” with no backup. Both practices °Ccur in the Navy, however, and when they do, those Etching (e.g., the parents of the young accused) frequently are shocked. Outrage soon follows.
, Once, there seemed to be an unwritten norm in the ser- Vlces that counsel should break in on the government side, and new counsel had to try at least a few cases as trial c°unsel before they would be allowed to represent accused 'Members who were at risk. This norm recognized the fun. antental concept that, if someone had to lose because of 'Experience or ineptitude, it should be the sovereign, and n°t a possibly innocent accused. This old norm should be ^implemented immediately in all the services. Justice and Uridamental fairness demand it—as does the integrity and
perceived integrity of the system.
Other issues. There are a plethora of other issues— mostly regarding fairness—that also should be considered ln reinventing military justice. For example, Congress has
g provided an accused a statutory right to choose his
0r her own military counsel, apart from the right to a counSel detailed by the convening authority. About ten years aS°, Congress authorized the services to make rules to reasonably implement (and restrict) this right. The rules ahopted in several services—including the sea services—
ever, are so narrowly drawn as to make this impor-
tant right a virtual nullity. This is a problem that the Services can correct without waiting for legislative action— and they should.
Another fundamental issue of fairness arises from the Power—indeed the duty—of the convening authority to exercise “legal” command influence by hand-picking the JUry. No other prosecutor in the country could hand-pick jury, and severe censure and mistrial would result from jhe attempt. Our system compounds that problem by aiding the selection to be entirely from officers subject to the convening authority’s command and control—officers who owe their future careers to that officer. This prob- 'em goes well beyond being simply an appearance issue.
A final problem is a policy issue that impacts all the other issues. All changes to the Uniform Code of Military Justice and its principal implementing regulations are drafted and recommended by a committee of five uniformed officers known as the Joint Services Committee. Each member has a responsibility in administering the uulitary justice system. There are no members from the defense bar, the bench, or the civilian sector. If the com- uiittee had been more broadly constituted, perhaps some
of the current issues never would have arisen. It should be changed so that it more resembles other federal court rules advisory committees.
Only when these and many other issues are addressed and resolved will the military justice system regain the respect it enjoyed when initially implemented in 1950 and again be a model of fairness and due process that others might emulate.
The Navy historically has not welcomed changes to the military justice system: “traditional opinion within the service has always held that each successive reform would bring ruin and collapse.”13 But the Navy is not alone, and if prior attitudes are any guide, the Judge Advocates General of the various services also will stoutly resist any change: they “are not going to be the originators of ideas that are going to change the military justice system, at least not very often.”14 If this remains true, then challenges to the system and questions about its fairness will continue to rise until Congress acts over the will (and opposition) of the leadership of the services.
The better course would be for the Navy—now wiser, having endured Tailhook—to take the lead and initiate action. Change is inevitable, and it can be structured from within, or it can be imposed from without. How much better for those who know the system best to be the ones to prepare the blueprint for its recreation. With bold and enlightened leadership, the military justice system can be revised to function more fairly, and the interests of discipline, of justice, and of due process will be better served. Perhaps as important, our people will perceive the system as fair. Confidence can be restored: it is a worthy and necessary goal. But it will take committed naval leadership to transform this goal into reality.
'See generally, Mudrik, Military Justice—Goals and Identity, 31 Mil. L. & L. of War Rev., 202, 203-206 (1992).
•David Schlueter, Military Criminal Justice: Practice and Procedure (Third Ed.) (Charlottesville: The Michic Co., 1992), p. 30.
'Lurie. The Origins of the United States Court of Military Appeals, 1775-1950, vol. 1 of Arming Military Justice (Princeton, NJ: Princeton University Press, 1992),
'United States v. Weiss, 36 M.J. 224 (CMA 1992), cert, granted 61 U.S.L.W. 3783 (U.S. 24 May 1993) (No. 92-1482).
5United States v. Thomas, 22 M.J. 328, 332 (CMA 1986).
”133 Mil. L. Rev. 1 (1991).
"'See fn. 3, supra.
"United States v. Billig, 26 M.J. 744 (NMCMR 1988).
:NMCMR v. Carlucci. 26 M.J. 328, 330 (CMA 1988).
'•Valle, Rocks and Shoals: Order and Discipline in the Old Navy 1800-1861 (Annapolis: Naval Institute Press, 1980), p. 277.
“Lurie, pp. 256-57, quoting former Army JAG George Prugh. See generally, chapters 7 through 10.
Captain Barry retired in 1990 after 25 years of service. While on active duty, he served as operations officer on board the Coast Guard cutters Laurel (WLB-291) and Campbell (WMEC-909), as staff judge advocate, and as both trial and appellate military judge. He is a past president of the Judge Advocates Association and of the Pentagon Chapter of the Federal Bar Association. Captain Barry currently serves as an officer and a director of the National Institute of Military Justice, and as a member of the American Bar Association Standing Committee on Lawyers in the Armed Forces. He practices military and veterans law and serves as a mediator in Chantilly, Virginia.