The U.S. military justice system continues to garner substantial media attention and engender significant debate. High profile cases, such as the recent trial of Navy SEAL Eddie Gallagher, and more general concerns with the treatment of sexual assault victims or racial disparities in convictions and sentencing have cast doubt on the military justice system’s ability to yield just outcomes in serious cases. While a commanding officer’s military justice authority may be essential to preserving unit-level discipline and effectiveness, the current military justice system does not meet the requirements of today’s military community and U.S. criminal justice norms, particularly when addressing serious felony criminal acts committed by military members, as claimed in a recent Proceedings article by Marine Corps Lieutenant Colonel Kyle Phillips.
Quite simply, retaining local convening authority jurisdiction over such serious offenses is outdated and dysfunctional. There are no unit discipline or unique local military factors, or valid physical limitations in the modern world, which should affect or detract from a timely, thorough, and professional criminal justice response to heinous crimes such as murder, rape, sexual assault, or robbery. Accordingly, there is no reason to vest ultimate authority for prosecuting and adjudicating these complex and sensitive crimes in local commanders who are untrained and inexperienced in the law—particularly because they are susceptible to undue command and political influence. The current military practice of diverse local convening authorities, compounded by a judge advocate system not focused on producing professional, independent, and experienced criminal litigators, frequently fails to deliver the results the military community deserves.
My views are shaped by a fairly unique perspective. A U.S. Naval Academy graduate, I have served as both a Marine Corps and Navy officer; as a career civilian NCIS special agent, ultimately retiring as an NCIS executive assistant director; and as a civilian prosecutor in Baltimore, MD. Currently I am the Maryland state prosecutor. In all these roles, I have been able to compare and contrast the military’s justice system with those of state, federal, and foreign entities.
In my view, the significant flaw in the military justice system, and the greatest departure from accepted national and international standards, is the military’s overall response to serious felony crimes. Almost uniquely within the U.S. criminal justice paradigm, significant decisions such as charging, plea approval, and sentencing in these complex cases ultimately are left to an array of military officials who, for all their talents, are bereft of formal legal training and experience. As a result, current decision-making is widely inconsistent, overly susceptible to undue command influence (particularly at the local level), and often fails to protect the rights of victims and the accused in accordance with legal norms and widely accepted best practices.
Further undermining the wisdom of vesting adjudication oversight of serious felony crimes in military, not legal, professionals is the flawed approach often taken by the military to trying such matters. Serious criminal litigation in the military often is conducted by attorneys who, while otherwise good officers and lawyers, are relatively inexperienced felony trial advocates. In the majority of civilian jurisdictions, serious crimes are prosecuted by experienced lawyers who specialize in complex criminal matters, quite often with substantial additional technical expertise in specific offenses, such as homicides, sexual crimes, or domestic violence. In addition, most civilian defendants obtain or are afforded defense attorneys who also are experienced criminal litigators. Civilian cases are tried before judges who tend to have significant trial experience, both as trial lawyers and as presiding judges. In sum, the key decisions in any civilian matter almost always are made by experienced criminal law professionals, best postured to gauge the merit and context of a given case, and best disposed to provide consistent and appropriate justice. Key decisions in military matters are not.
There are unique aspects to military justice, particularly as regards military-specific offenses detracting from unit discipline or readiness. Accordingly, I would recommend that today’s military justice system pursue evolution, not necessarily revolution. Bifurcating the system to remove the most serious criminal offenses from local jurisdiction, while retaining local commander authority over military-specific or regulatory crimes, would be a positive first step. To provide consistent and expert oversight, an experienced senior military attorney could serve as a centralized independent convening authority for all serious felonies, and a professional cadre of dedicated career prosecutors and defense counsel should be assigned as independent trial and defense counsel, with authority to approve charging, pleas, and sentence recommendations, and the consequent ability to obtain significant trial experience. The military has long used a centralized, professional approach to investigating felony crimes through the military criminal investigative organizations (NCIS, OSI, and Army CID); there is no reason not to adopt a similar approach to subsequent prosecution and adjudication. These or similar steps would go a long way to address the flaws in the current system.
In sum, today’s world is not one of communication and logistics barriers necessitating drumhead court-martials; there is no reason the military cannot adopt a professional and centralized approach to adjudicating serious criminal offenses, preserving the rights of victims and defendants, and best guaranteeing consistent and transparent proceedings and sentences. Local command equities may influence the treatment of traditional military offenses—such as unauthorized absence and disobeying orders—but there are no local circumstances that merit departing from a centralized and professional approach to investigating, prosecuting, and adjudicating serious felonies. A suspected murder or rape in Norfolk merits the same treatment as one in San Diego. We can, and should, do better.
