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The American military justice system in the new millennium.

I. INTRODUCTION

"Nothing is more harmful to the service than the neglect of discipline; for that discipline, more than numbers, gives one army superiority over another." (1) As commander of the Continental Army, George Washington recognized that no military unit could function without an effective means of preserving discipline. These words uttered in 1759 ring no less true today. Commanders must have the ability to ensure that service members perform their duties and follow orders, even in situations involving life and death. The American military justice system, formulated over centuries of experience, meets this need.

Most people in the United States and abroad have glimpsed the American military justice process through fictionalized television programs such as "JAG," or through movies such as "A Few Good Men" or "The Caine Mutiny." However fleeting these images have been, they have created a perception of what military justice is in the United States. While these productions may be entertaining drama, they generally do not accurately portray the workings of the process, purpose, or importance of the military justice system and how it is inextricably linked to the national security of the United States.

We are in a time when some outside the American military are calling for fundamental changes to our system. The academic debate that has coincided with the 50th Anniversary of the Uniform Code of Military Justice2 has been healthy and valuable. No legal system can or should operate in a vacuum, disregarding the changing norms of society. But make no mistake, the American military justice system is not static or outdated; it is dynamic and evolving. It incorporates the fundamental protections offered to all United States citizens and, in many ways, exceeds them. To appreciate the merits and importance of the military justice system fully, it is essential to understand the purpose, development, and procedures behind this specialized form of legal jurisprudence. This article illustrates the necessity and merits of the United States military justice system. It is intended to foster a better understanding and appreciation for the system by all who read it.

II. WHAT IS THE MILITARY JUSTICE SYSTEM?

The preamble to the Manual for Courts-Martial (MCM) declares that the purpose of military law "is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States." (3) The maintenance of good order and discipline is an absolutely essential function of command. In fact, in the American military, a commander has a duty to ensure that good order and discipline is maintained throughout his or her unit. (4) The military justice system is an important means to discharge this duty.

The military justice system operates separately from our federal and state criminal systems. (5) Military law handles traditional crimes such as assault and larceny, as well as offenses unique to the military such as failure to obey orders and absence without leave. With worldwide application, the military justice system applies to all offenses committed by military members. Its central purpose is to provide commanders with the legal authority to enforce good order and discipline within their units.

The modern military justice system is based on the United States Constitution and is implemented through a combination of federal law and executive orders. The Constitution gives Congress the authority to "provide for the common Defence," "to raise and support Armies," and "to make rules for the Government and Regulation of the land and naval Forces." (6) At the same time, the Constitution designates the President as Commander in Chief of the armed forces. (7) In this constitutional framework, the modem military justice system was established with a foundation resting on four authorities: the Uniform Code of Military Justice (UCMJ); (8) the Manual for Courts-Martial (MCM); (9) a Presidential Executive Order that includes the rules for trial by court-martial; and, the body of case law developed from the courts that review military justice cases: the service Courts of Criminal Appeals, the Court of Appeals for the Armed Forces, and the United States Supreme Court. (10)

A. Creation of the Uniform Code of Military Justice (11)

On May 5, 1950, President Truman signed into law the Uniform Code of Military Justice, a remarkable piece of legislation that dramatically changed the scope and practice of military law. Prior to the enactment of the UCMJ, military justice in the United States had remained virtually unchanged since the time of the Revolutionary War (12) when the Articles of War governed the Army disciplinary system while the Navy followed the Articles of Government for the Navy. (13)

World War II set the stage for the creation of today's military justice system. The American public, in the 1940's, was exposed as never before to the military justice system. During World War II, more than 16 million men and women served in the armed forces. There were more than two million courts-martial, including 80 thousand general courts-martial. (14)

Many were concerned with the almost summary disposition of cases, the lack of rights afforded to an accused, and the perceived unlawful command control over the system. The system appeared arbitrary, with too few protections for the soldier and too much power for the commander. Rear Admiral Robert J. White described the ground swell of criticism against military justice thusly: "The emotions suppressed during the long, tense period of global warfare were released by peace, and erupted into a tornado-like explosion of violent feelings, abusive criticism of the military, and aggressive pressures on Congress for fundamental reforms in the court-martial system." (15) Congressional leaders sought to create a new disciplinary system that provided greater protections for service members. Ohio Congressman Charles H. Elston, Chairman of the House Armed Services Committee, expressed hope that "we will be able to write some legislation applicable to both the Army and the Navy, so that the entire system within those bra nches may be revised." (16)

On May 14, 1948, Secretary of Defense James Forrestal announced the creation of a committee, chaired by Harvard Law Professor Edmund Morgan, to draft the first American statute of criminal law and procedure applicable to all military personnel. The result was the Uniform Code of Military Justice, otherwise known as the UCMJ, which President Truman signed into law on May 5, 1950. (17) The Code became effective on May 31, 1951, in the midst of the Korean War.

The UCMJ marked a distinct evolution in philosophy. Its drafters recognized that justice and fairness were an integral component of the disciplinary process. (18) Under the UCMJ, the commander retained considerable authority over his troops, but that authority was balanced with a new system of military appellate courts and expanded rights for service members. A new federal court, the Court of Military Appeals, was created with civilian judges responsible for appellate review of the more serious military justice cases. (19) The UCMJ provided an expanded role for lawyers, called judge advocates, gave increased responsibilities to the staff judge advocate to provide legal advice to commanders on military justice matters, and created the position of law officer, the precursor of the military judge, to make judicial rulings in all general courts-martial. The UCMJ was the most far-reaching change in military law in American history, providing for the first time one criminal code applicable to all the services and a criminal justice system containing safeguards for the soldier not yet enjoyed by civilians. (20)

B. Why Do We Have a Separate System?

To appreciate the importance of the military justice system, it is necessary to first understand why a separate system of justice is needed. Judge Robinson O. Everett, former Chief Judge of the Court of Military Appeals, described the importance of having a separate justice system for the armed forces, this way:

[M]ilitary operations in modem war demand split second decisions - decisions that cannot be arrived at through the procedure of a debating society. In many military situations someone individual must be in a position to make choices for a group and have his decision enforced. For this reason, the armed services have a system of rank and of command which is designed clearly to place one person in charge when a group action must be decided upon. Of course, for American civilians, and those of many other lands for that matter, it is difficult to acquire habits of instantaneous obedience to another person's decisions. Military justice provides a stimulus to cultivate such habits by posing the threat that disobedience of commands will be penalized. (21)

The United States Supreme Court has recognized that the military is a specialized society that has developed laws and traditions of its own. (22) The difference between military and civilian cultures lies with the recognition that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." (23) The Court observed, "An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier." (24) Similarly, the Court concluded, "[T]he military constitutes a specialized community governed by a separate discipline from that of the civilian." (25)

Civilian law does not recognize uniquely military offenses, such as desertion, absence without leave, disobedience of orders, disrespect, or dereliction of duty. (26) These types of offenses exist to ensure military members follow orders and accomplish military objectives. (27) If a commander cannot rely on his subordinates to obey and execute directives and, more importantly, if the members cannot rely absolutely on each other to follow orders, the effectiveness of the fighting force will be undermined and, ultimately, our national interests will be imperiled. No civilian parallel may be drawn to explain the need for enforcing discipline. Civilian employers cannot legally compel their subordinates to come to work on time, much less induce them to perform a task resulting in substantial likelihood of death. Discipline for the sake of good order is not an objective of our civilian society, but is a necessary requirement of our military justice system. (28)

The Uniform Code of Military Justice provides a very effective means of not only handling military offenses, but also ensuring the process is widely available. This is advantageous in that United States military members are stationed all over the world. (29) The civilian justice system is not generally designed to be used outside the geographical boundaries of the United States. (30) The military justice system, on the other hand, goes wherever the troops go-to provide uniform treatment regardless of locale or circumstances. (31) while military members are frequently subjected to the criminal jurisdiction of host nations, most cases are tried in accordance with international agreements and treaties reflecting the American system's application. If the military justice system did not exist, our military members would have their cases tried in foreign courts and be imprisoned in foreign jails. (32)

Finally, the military justice system is designed to fairly adjudicate criminal cases efficiently. (33) This is particularly important in a deployed or contingency situation when a commander must expeditiously deal with misconduct to prevent degradation of the unit's effectiveness and cohesion. Delaying disciplinary action will invariably prejudice good order. As Judge Everett cogently points out, "justice delayed is justice defeated. ... In military life, where to maintain discipline, the unpleasant consequences of offenses must be quick, certain and vivid--not something vague in the remote future." (34)

C. The Military Justice System

To some, "military justice is to justice as military music is to music!" (35) Detractors contend that our system is antiquated and in need of dramatic change. (36) The reality is that over the past 50 years, the military justice system has evolved into an even more fair and effective system. The UCMJ represents a masterful piece of legislation that balances the need for good order and discipline with the constitutional rights afforded to all United States citizens. Commanders are the foundation of the American military -- people who make tough decisions and ensure success. Discipline begins and ends with commander involvement. The following discussion explains the authority and responsibilities commanders and others exercise in the military justice system.

D. A Commander's Role

Central to the military justice system is a commander's authority and discretion to control discipline within his or her unit. (37) A commander's wisdom and unshakable resolution ensures standards expected of every military member are met by all. Marshal Maurice de Saxe, one of the greatest French generals of the 18th century, stated, "After the organization of troops, military discipline is the first matter that presents itself. It is the soul of armies. If it is not established with wisdom and maintained with unshakable resolution you will have no soldiers." (38) Commanders at all levels are involved with every part of the military justice system to include: directing preliminary investigations into misconduct, evaluating the results of the investigation, disposing of cases, preferral and referral of charges, selecting panel members, and taking final action after the court-martial is concluded.

E. Disciplinary Tools

Although courts-martial are the most well known disciplinary option in the military justice system, commanders have a wide range of options to handle disciplinary problems without resorting to trial. A commander may choose to impose administrative sanctions or nonjudicial punishment. In deciding which disciplinary tool to employ, a commander considers more than just the nature of the misconduct; he also evaluates the suspect's record and weighs it against the impact of the misconduct to good order and discipline. The commander is trusted to use his best judgment so that the "punishment fits the crime.

1. Administrative Actions

The vast majority of disciplinary problems are minor in nature and do not require a more formal action. Commanders have several options to quickly correct these acts of minor misconduct. Short of punitive action, an Air Force commander may choose from a wide range of responses including, by order of seriousness, counselings, admonishments, and reprimands (each may be oral or written). (40) Those actions can be taken separately or in conjunction with, or may produce, collateral administrative consequences such as discharge from the service, demotion (enlisted members only), delay in promotion or removal from a promotion list, cancellation of an assignment, or establishment of an unfavorable information file. This assortment of options allows commanders to swiftly and efficiently deal with disciplinary infractions.

2. Nonjudicial Punishment

To give commanders more flexibility in handling minor offenses, Congress has vested commanders with the authority to impose nonjudicial punishment (NJP) under Article 15, UCMJ. (41) NIP is commonly referred to as an "Article 15" (or "mast" in the Navy and "office hours" in the Marine Corps). Nonjudicial punishment serves as a middle ground in the military justice process. It provides sanctions less onerous than a court-martial, yet more severe than nonpunitive measures. (42) By definition, an Article 15 is not judicial-it is not a trial and does not result in a federal conviction. (43) In fact, acceptance of the NIP is not even an admission of guilt. (44) Even so, a member who is offered an Article 15 has the right to consult counsel prior to accepting the nonjudicial punishment. (45) The military member may present evidence of his innocence or mitigating facts surrounding the alleged misconduct. After considering the matters presented by the accused, the commander will determine whether the member committed the offense. If the commander makes that determination, he then imposes an appropriate punishment. (46)

NJP is an indispensable tool used to maintain good order and discipline while also promoting positive behavior changes in the member without the stigma of a court-martial conviction. (47) Punishments may include reduction in rank for enlisted members, forfeiture of pay, restriction to base, extra duties, for enlisted members correctional custody, and reprimand. While NIP is a powerful means for a commander to respond to minor offenses, the commander's authority is not unlimited. (48) Under specific circumstances, (49) the service member has the right to refuse the Article 15 and demand to be tried by a court-martial to have "their day in court." (50) Clearly, this flexibility allows a commander to tailor a disciplinary response based on the seriousness of the misconduct and its impact on good order. The service member benefits because the commander can deal with small problems quickly without having to resort to the sanctions that may result from a court-martial.

III. FEATURES OF THE SYSTEM

A. Pretrial Investigations, Pretrial Confinement & Preferral of Charges

1. Pretrial Investigations

After receiving information that a member may have engaged in misconduct, the service member's commander will ensure a preliminary inquiry is completed. Exculpatory evidence as well as inculpatory evidence is sought. (51) In more serious cases, the commander may seek the assistance of Security Forces or an other investigative office--for the Air Force, the Air Force Office of Special Investigations (AFOSI). Once an investigation is completed, the immediate commander will receive the report and decide upon an appropriate course of action.

2. Pretrial Confinement

A commander is concerned not only with the well being of the member suspected of misconduct, but with overall community safety. If a commander determines that a service member suspected of a crime is a flight risk or may commit further misconduct, the commander may limit the accused's freedom before trial. Conditions on liberty, (52) restriction in lieu of arrest, (53) and pretrial confinement (54) are among these options. Commanders must make a careful assessment to determine whether some form of restraint short of confinement is more appropriate than confinement (e.g., restriction to the base). (55)

If a commander places an individual into pretrial confinement, the accused's rights are protected through an extensive review process. (56) A pretrial confinement reviewing officer will determine whether sufficient grounds exist to continue confinement. (57) The accused is represented by counsel and may argue that confinement is not warranted. (58) The reviewing officer is completely independent and his or her determination (59) to release a confinee generally will be binding upon the commander. (60) Once confinement is ordered, it may be terminated only by the accused's commander, the detailed military judge, or an individual officially charged with reviewing the commander's decision to impose the confinement. (61) Additionally, failure to properly conduct a pretrial confinement hearing will entitle the accused to receive credit against any court-martial sentence that is approved. (62)

3. Preferral of Charges

As stated above, commanders have a number of disciplinary tools available to them based upon the nature of the particular circumstances. The Manual for Courts-Martial requires resolution of the case at the lowest disciplinary level consistent with the seriousness of the offense.63 If the accused's immediate commander believes action by court-martial is warranted, the next step is preferring charges against the military member. (64) The commander has broad discretion in deciding what charges to prefer. He may prefer both minor and major offenses together. He should prefer all known charges at the same time. (65) A commander acts as the accuser when preferring charges, (66) although anyone subject to the UCMJ may serve as an accuser. The accuser signs under oath and must have personal knowledge of or have investigated the matters set forth in the charges. (68)

B. Convening Authorities

The authority to convene courts-martial is incident to command at certain designated command levels. After preferral of charges, the evidence is forwarded to a commander authorized to convene courts-martial. Convening authorities are senior commanders, usually colonels or general officers within the military establishment. To be a convening authority, commanders must have demonstrated moral character, intelligence, military bearing, and successful management skills. Most have served for years, dedicating their lives to a military career. Their presence ensures the system works fairly and efficiently.

After reviewing the charges and evidence, the convening authority has a number of options. These options include: dismissing the charges, referring the charges to a court-martial, returning the charges to the immediate commander for a lesser disposition, forwarding the charges with his recommendations to a higher convening authority, or directing that further investigation take place. (69) The convening authority's military justice responsibility cannot be delegated to any other officer. (70)

Referring charges to court-martial is a straightforward process. Following preferral of charges, the convening authority appoints the court (71) members and refers the case to them for adjudication. Court members are selected by their age, education, training, experience, length of service, and judicial temperament. (72) They must be independent and unbiased. Even though the convening authority convenes the court-martial, the law prohibits him from attempting to improperly influence or affect the outcome, (73)

To protect the integrity of the system, military judges are also prohibited from certain actions. To combat the danger of unlawful command influence permeating the court-martial, the Court of Appeals for the Armed Forces has made it clear that even the possibility of unlawful influence will constitute grounds for overturning a conviction. (74) The court acknowledged Congress's intent that "no judge will participate in the adjudication of a case if he is not "neutral and detached." (75) Any relationship that casts suspicion on whether a military judge is fair or impartial provides a basis for an accused to seek his disqualification. (76)

The convening authority has many ancillary powers in convening a court-martial. Included among these responsibilities is the convening authority's power to enter into a pretrial agreement with an accused. (77) The convening authority is also responsible for production of expert witnesses. (78) When necessary, the general court-martial convening authority has the power to grant a military witness immunity. (79) Following a court-martial, the convening authority has further discretion in ordering a rehearing or retrial. (80) No rehearing or retrial may take place if the member is acquitted.

If the court-martial finds an accused guilty, once sentencing is completed, the case is returned to the convening authority for final action. (81) The convening authority may approve or disapprove the court's findings of guilt or grant clemency by suspending or disapproving a portion of the accused's sentence. This oversight gives a military accused an additional opportunity to argue that the court's findings should be dismissed and/or a reduction in sentence is warranted. (82) The convening authority may not change a finding of not guilty or increase a punishment. It is not unusual for a convening authority to make changes to the final action which are beneficial to the accused. This right to clemency is unique to the military justice system.

C. Courts-Martial

Apart from popular movies or television programs, the term "courtmartial" may conjure up the 1926 court-martial of General Billy Mitchell, (83) or the case of Lieutenant William Calley. (84) Court-martial is the most serious judicial process a commander has at his disposal for handling misconduct. In keeping with the flexibility of the military justice system as a whole, there are three distinct levels of court-martial: the summary court-martial, the special court-martial, and the general court-martial.

1. Summary Court-Martial

A summary court-martial is the lowest forum for trial. It is designed to dispose of offenses that merit more than nonjudicial punishment but are not appropriate for a special or general court-martial. Only enlisted members who consent may be tried in this forum. (85) A single officer presides over the hearing, renders the verdict, and if the accused is found guilty, imposes a sentence. (86) While the UCMJ does not per se guarantee an accused representation by a defense counsel in summary courts-martial, current Air Force practice is to provide counsel to the accused. (87)

The procedure for summary courts-martial generally follows the same procedural course of a general or special court-martial. The summary court-martial convening authority refers the charges to court. (88) The accused has the right to cross-examine witnesses, present evidence and require the Government prove guilt beyond a reasonable doubt. The summary court-martial does not apply all of the Constitutional and procedural protections of a special or general court-martial. This is one of the reasons why the accused must consent to the forum and why the range of punishment in a summary court-martial is significantly limited. (89)

2. Special Court-martial

This proceeding is an intermediate level of trial and must by convened by a commander empowered as a special court-martial convening authority. (90) A special court-martial is composed of at least three members and a military judge. (91) The accused may be tried by members or, by his request, military judge alone. In this forum, there is both a trial counsel representing the interests of the government and a defense counsel representing the accused. (92) The government may try an officer or enlisted accused for any noncapital offense in this forum. (93)

A special court-martial is very similar to a civilian criminal trial in that counsel may make opening statements, examine and cross-examine witnesses, present evidence, and make final arguments as counsel do in civilian trials. The military counsel appears in uniform, but the military judge may wear the traditional judicial robe. (94) A court reporter transcribes the proceeding. The military rules of evidence and rules for court-martial procedure govern special and general court-martial proceedings. The proceedings are open to the public, but are held outside the presence of the members. (95) Formal arraignment and contested motions are also held outside the presence of the members in these so-called "Article 39(a) sessions." (96) The government counsel has the burden to prove the elements of the crime(s) "beyond a reasonable doubt." (97)

Although the degree of punishment is greater than at a summary court-martial, it is still limited. The maximum punishment that may be adjudged in special courts-martial includes a bad conduct discharge, a maximum of one year confinement, forfeiture of two-thirds pay for twelve months and a reprimand. (98) The forum limitations apply regardless of the number of offenses or the maximum punishment authorized for the offenses for which the accused is found guilty.

3. General Court-Martial

This forum is reserved for the most serious offenses and is indistinguishable from the special court-martial except for composition and maximum punishment. General courts-martial are composed of at least five members with a military judge presiding. (99) If an accused chooses, in a noncapital case, he may be tried by a military judge alone. This forum may impose the maximum lawful punishment for any offense, including death. (100)

Before charges may be referred to a general court-martial, Article 32, UCMJ, requires a formal investigation into the evidence and charges. (101) The Article 32 investigation is the military's counterpart to the civilian grand jury. (102) Both are designed to avoid referring baseless charges to trial. The investigating officer (IO) inquires into the truth of the matters set forth in the charges, considers the form of the charges, and recommends disposition of the case in the interest of justice and discipline. (103) The IO is a commissioned officer. (104) He is independent (by law) from both the government and the defense. (105) Any attempt by the convening authority or the government to influence the IO's decision may itself constitute an offense under the UCMJ. (106) Typically, an Article 32 investigation is open to the public. (107) During the hearing itself, the accused is entitled to be present with counsel. (108) An accused may also elect to testify and may present witnesses and offer evidence for the IO's consideration. (109) The investigation is designed to give the accused a preliminary opportunity to hear the evidence against him. The accused has an opportunity to persuade the convening authority that the charges are baseless or that the case should be referred to a lesser forum. (110)

D. Court Participants

1. Legal Counsel

The typical court-martial contains at least one detailed prosecutor, also called the trial counsel, and one detailed defense counsel. The trial counsel is charged with prosecuting the criminal case on behalf of the United States (111) and the defense counsel represents the accused active duty member. For a general court-martial, both trial and defense counsel are certified as competent to act as counsel under Article 27(b), UCMJ, by The Judge Advocate General. (112) To be certified, the attorneys must be members of the federal bar or the highest court of any state.

Trial practice is governed by the Rules for Courts-Martial and Military Rules of Evidence, both of which are contained in the Manual for Courts-Martial (MCM). Among these rules are the provisions on discovery. The MCM gives both the government counsel and the defense counsel "equal access" to evidence. (113) The MCM specifically provides both will have an adequate opportunity to prepare the case and both will have equal opportunity to talk to the witnesses and examine the evidence. (114) Neither counsel should impede or frustrate the good faith efforts of opposing counsel in obtaining information. The MCM sets forth broad discovery rights for the defense, and the Military Rules of Evidence mandate disclosure of certain evidence by the prosecution to the defense in advance of trial and vice versa. (115)

In the military system, the trial counsel is charged with the responsibility to obtain witnesses for both the government and the defense. The witness's testimony must be relevant and necessary. (116) To request defense witnesses, the defense counsel or accused must submit a request to the trial counsel requesting their presence. This request must include a synopsis of expected testimony sufficient to meet the standard of relevance and necessity. If the testimony meets this standard, the government is obligated to pay the costs of producing the witnesses. This obligation includes production of expert witnesses who charge fees for their service. (117)

2. Defense counsel

A suspect may seek the advice and assistance of defense counsel. (118) An Air Force member, regardless of rank or income status, may be represented by an Air Force Area Defense Counsel (ADC), without cost, at any stage of the process (including, as discussed below, post-trial appeals). ADCs are officers who are entirely independent of an installation's chain of command. (119) The ADCs counsel and assist members facing investigation and adverse disciplinary actions. (120) A military member may choose to be represented by the ADC, may hire civilian counsel at his or her own expense, or may be represented by both the ADC and the civilian counsel.

Every ADC has served at a base legal office before assignment to the defense counsel position and often has extensive military justice experience. The Judge Advocate General of the Air Force personally appoints the attorney to this position. This selection and appointment is made only after a thorough review of the attorney's qualifications. Additionally, after selection, all ADCs are enrolled in on-going legal education and training programs to further increase the level of their trial skills. The creation of the ADC program has been a two-fold success: one being the continued zealous advocacy on the part of military members who are accused of misconduct; the other being the continued preservation of justice.

3. Circuit Counsel

In addition to local trial and defense counsel, the Air Force employs senior litigation specialists. These attorneys, both trial and defense counsel, are located in five regional offices and travel throughout their respective circuits representing the government and accused members in complex cases. The Judge Advocate General selects attorneys to be circuit counsel based on their trial experience and litigation skill. In addition to this representation, circuit counsel also provide legal training at annual conferences for local trial and defense counsel.

4. The Accused

Military members do not forfeit their constitutional rights once they join the military. (121) Like all American citizens, service members enjoy the fundamental protections of our Constitution. For example, every military member has the right to be protected against unreasonable searches and seizures, (122) to be protected against compelled self-incrimination, (123) to be permitted discovery of evidence, (124) and to have legal counsel in all special and general courts-martial. (125) The Military Rules of Evidence protect these rights by prohibiting the Government from using evidence that was obtained by or derived from unlawful interrogations and illegal search and seizures. (126)

While service members enjoy most of the same protections afforded all citizens, the unique demands of the military services require a balancing act between military necessity and personal liberties. The Supreme Court has examined these competing interests and has consistently held that military personnel can be subjected to duties and restrictions that ordinarily would be impermissible in civilian life. In Parker v. Levy, (127) the Court stated that:

[In the armed forces] some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. (128)

However, the power of an armed service over its members is not unlimited. Military courts have consistently ruled that orders and directives that only tangentially further a military objective, are excessively broad in scope, are arbitrary and capricious, or needlessly abridge a personal right are subject to close scrutiny and may be invalid and unenforceable. (129) The courts have made it clear that while the needs of the military must be considered, service members are still afforded constitutional protections.

From the very beginning of an inquiry or investigation into suspected misconduct, a military suspect has greater rights against self-incrimination than a civilian suspected of the very same offense.(130) Under Article 31 of the UCMJ, a military member suspected of an offense must be read his or her rights before questioning--merely because he or she is a suspect.(131) The member has the right to ask for an attorney and can choose not to make a statement to investigators. These rights are binding on both commanders and military police.(132)

5. Court-Martial Panels

Article 25, UCMJ, strictly governs the selection of court-martial panel members. Unlike the civilian system, which depends on the availability of jurors, the military justice system operates on a "best qualified" basis. The convening authority selects those individuals he or she believes to be best qualified for court-martial duty by reason of age, education, training, experience, length of service, and judicial temperament.(133) The court-martial panel will be comprised of officers unless the accused requests 1/3 of the panel be enlisted members.(134) Court-martial panels typically consist of members who have at least a high school degree. (135) Many members have bachelors, graduate, and post-graduate degrees.

Two competing interests exist in the court-martial selection process: to identify and select a panel of court-martial members that are competent, fair, and impartial, while at the same time not unduly restricting the conduct of the military mission or national security. (136) The current system of selection is sufficiently flexible to be applied in all military units, locations, operational conditions, and across all armed forces. (137) In addition to system flexibility, the commander is in the best position to determine whether an individual is needed for operational matters or is available to sit on a court-martial panel. (138) Adequate safeguards exist in the military justice system to ensure selection of fair and impartial court-martial panels. These safeguards include the questioning, referred to as voir dire, of the panel members by the judge and counsel regarding their fitness to sit on the panel. Both government and defense counsel may peremptorily challenge a panel member or may request any panel me mber be excused for cause anytime during the trial. (140) Following challenges, the remaining members sit as the court-martial panel. (141)

Military panels are beneficial to the accused due to their understanding of the military environment. Military members share common experiences within the military community. This familiarity provides the members with an insight into the accused's actions and a level of appreciation for the circumstances under which the accused lives and works. (142) Article 37, UCMJ, ensures a court-martial member is free from improper influence in his or her decision-making.

After presentation of evidence, trial and defense counsel make final arguments, and the members are excused to deliberate. The members vote by secret written ballot. (144) The military system generally convicts or acquits by 2/3 vote of the members. (145) If the accused is not convicted on the charged offense or lesser included offenses, he or she is automatically acquitted. The concern of the civilian "hung jury," where unanimous vote is necessary for conviction, does not exist under the military justice system. Hung juries produce no firm outcome, leaving the civilian accused under a cloud of doubt and leaving prosecutors to decide whether to retry the case.

6. Military Judges

Military judges base their rulings in part on constitutional provisions, common law, Rules for Courts-Martial, and Military Rules of Evidence. These rules and procedures ensure an accused's rights are maintained throughout the trial. In 1980, the Manual for Courts-Martial was amended to include new Military Rules of Evidence (MREs). (149) These r ules are unique to military practice in their terminology and specialized use in military practice. Applicable to all courts-martial, the MREs are for the most part based upon the Federal Rules of Evidence. (150) As the federal rules change, they are incorporated into the MREs unless the President takes action to the contrary. (151) These rules also apply to all Article 39(a) sessions, fact finding proceedings ordered on review, proceedings in revision, and contempt proceedings. (152)

Experienced, professional judges preside over all trials in the United States, and the military is no different. (146) In the Air Force, military trial judges are appointed by The Judge Advocate General and are organized in five geographic judicial circuits. A military judge's only duty is to preside over courts-martial (and, on occasion, certain administrative proceedings). (147) Like military defense counsel and circuit trial counsel, trial judges report through a separate, legal chain of command. Court-martial convening authorities are not responsible for appointing an individual judge to a particular case, nor do they write or indorse a judge's annual performance.

E. Review of Courts-Martial

1. Clemency

As discussed before, if an accused is convicted of an offense, the military system offers the accused an unparalleled opportunity for clemency. Before a convening authority approves a court-martial result, the accused and counsel may submit matters challenging the outcome of the trial and/or requesting clemency as to sentence. (153) The convening authority may, for any reason, disapprove any or all of the findings and suspend or reduce the sentence. (154) He may not change an acquittal or increase a sentence.

2. The Appeal

The military system offers the accused extraordinary access to the appeals process. All courts-martial receive a post-trial review. Every trial that results in a sentence that includes a punitive discharge or confinement for a year or more is automatically appealed to the first level of appellate military court, the service Courts of Criminal Appeals. (155) An Air Force accused is entitled to representation free of charge by a judge advocate assigned to the Appellate Defense Division in Washington, D.C. Like at the trial level, an accused may also hire a civilian lawyer at his or her own expense to operate alongside the military counsel. The case may be reviewed further by the highest court in the military system, the Court of Appeals for the Armed Forces. This court is constituted under Article I of the Constitution. It is comprised of five civilian judges appointed for 15-year terms. (156) Military accused may also petition the United States Supreme Court to review their cases. (157) This system of appellat e courts provides significant oversight of the court-martial process, ensuring procedural and substantive fairness. In order to appeal a criminal conviction, a defendant must have a transcript of the trial court proceeding. In the military system, a record is prepared in every case and provided to the accused free of charge.

3. "De novo" Review

Congress has granted the service Courts of Criminal Appeals the authority to review the findings of courts-martial "de novo," that is, anew or for a second time. (158) Such authority permits the Air Force Court of Criminal Appeals to determine, based on the facts in the record, that the evidence was not sufficient to convict the accused. They may even overturn the results of the court-martial on their own volition. This safeguard further ensures that an accused service member receives a fair and impartial trial.

IV. CONCLUSION: A "JUSTICE" BASED SYSTEM

The American Military Justice system is founded in the concept that world-wide deployment of large numbers of military personnel requires a flexible, separate jurisprudence capable of operating in times of peace and conflict. (159) Fortunately, as American troops continue serving the world over, a comprehensive system of justice that balances the rights of the accused with the necessity of military operations travels with them. It is vital that the military justice system is understood, not only by American society, but by our allies as well. Despite attempts to portray the military justice system as being out of touch with modem legal thought, the system has withstood the test of time, both in terms of constitutional challenges and practical application. For the last 50 years, the military justice system has served the United States well and will continue to do so into the future.

(1.) General George Washington, Letter of Instructions to the Captains of the Virginia Regiments (29 July 1759).

(2.) See Act of March 5, 1950, ch. 169, 81st Cong., 2d Sess.

(3.) MCM, para. 3, at I-1.

(4.) These unique responsibilities include overseeing the health, safety, welfare, morale, and efficiency of those under his command. The United States v. Harris, 5 M.J. 44, 59 (CMA 1978).

(5.) The United States has three major criminal justice systems; the individual state system, the federal system, and the military justice system.

(6.) U.S. Const. art. I, [section] 8. The Supreme Court has afforded great "deference to the determination of Congress made under its authority to regulate the land and naval forces." Weiss v. United States, 510 U.S. 163, 177 (l994).

(7.) U.S. Const. art. II, [section] 2. Historically, two civilian authorities govern the military: Congress and the President.

(8.) Codified in title 10 USC [section][section] 801 -941.

(9.) The 2000 MCM incorporates all Executive Orders through 6 Oct 1999 (EOs 12473, 12484, 12550, 12586, 12708, 12767, 12888, 12936, 12960, 13086, and 13140). Although not currently drafted into the 2000 edition of the MCM, Executive Order 13262 was signed on 11 April 2002 and is applicable to current court practice. The MCM includes the Preamble, the Rules for Courts-Martial, the Military Rules of Evidence, the punitive articles, and nonjudicial punishment procedure (hereinafter NJP).

(10.) U.S.C. [section][section] 866 - 869 (1998) authorizes review of military courts-martial by appellate courts.

(11.) For a more detailed history of the American military justice system, see John Lurie, Arming Military Justice, The Origins of the United States Court of Military Appeals 1775-1950, 130149 (1992); see also William T. Generous, Jr., Swords and Scales--Development of the Uniform Code of Military Justice (1973).

(12.) America's first military legal code was enacted in June 1775. See William Winthrop, Military Law and Precedents 12 (2d ed. 1920). Congress enacted a set of legal guidelines for the behavior of the forces, following an English practice in effect since 1689 when Parliament wrested from the Crown the power to legislate for the military and enacted the first Mutiny Act. The Army Lawyer: A History of the Judge Advocate General's Corps, 1775-1975 (Reprinted 1993).

(13.) See generally Edward M. Byrne, Military Law 2-6 (3d ed. 1981).

(14.) Court-martial statistics for this period may be misleading. Commanders considered courts-martial appropriate for all levels of misconduct. It was not uncommon for active duty members to be court-martialed for minor disciplinary infractions several times and then returned to the front-line of combat. See Capt John T. Willis, The United States Court of Military Appeals, Its Origin, Operation, and Future, 55 Mil. L. Rev. 39 (1972). The number of courts-martial tried during World War II amounted to one third of all criminal cases tried in the nation during the same period. See William T. Generous, Jr., Swords and Scales-The Development of the Uniform Code of Military Justice (1973) citing Judge Advocate General, Congressional Floor Debates on the Uniform Code of Military Justice (1950).

(15.) Rear Admiral Robert J. White, The Background and the Problem, ST JOHN'S L. REV. 35 (1961). See generally John Lurie, Arming Military Justice, The Origins of the United States Court of Military Appeals 1775-1950, 128-149 (1992).

(16.) The Army Lawyer, supra note 12, at 169. See generally Index and Legislative History to the Uniform Code of Military Justice, 3 vols (1985). Indexed and Compiled by the Army Court of Military Review.

(17.) Many proponents contributed to the creation and development of the Uniform Code of Military Justice (hereinafter UCMJ). Some of these noteworthy individuals and groups include (but are not limited to) Arthur Vanderbilt, Dean of New York University, chairman of the Vanderbilt Commission; Arthur J. Keefe, professor of law at Cornell University and Chairman of the Keefe Committee; Felix Larkin, member of the Keefe Committee; the Association of the Bar of New York (1948), Report on Pending Legislation for the Revision of the Army Court-Martial System (February 1948); Senator Charles Elston of Ohio, proponent of the Elston Act (June 1948); and Senator James Kern of Missouri.

(18.) "We were convinced that a Code of Military Justice cannot ignore the military circumstances in which it must operate but we were equally determined that it must be designated to administer justice." Hearings on H.R. 2498 Before a Subcomm. Of the House Armed Services Comm., 81st Cong., 1st Sess., at 606 (1949) (statement of Professor Edmund G. Morgan).

(19.) Lurie, supra note 15.

(20.) Brigadier General (Retired) John S. Cooke, Introduction: Fifrieth Anniversary of the Uniform Code of Military Justice Symposium Edition, 165 MIL. L. REV. 1 (2000).

(21.) Robinson O. Everett, Military Justice in the Armed Forces of the United States (The Telegraph Press 1956).

(22.) See, e.g., Parker v. Levy, 417 U.S. 733, 743 (1974).

(23.) United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).

(24.) In re Grimley, 137 U.S. 147, 153 (1890).

(25.) Orloffv. Willoughby, 345 U.S. 83, 94 (1953).

(26.) R.C.M. 201 (d)(1). Courts-Martial have exclusive jurisdiction of purely military offenses.

(27.) Solorio v. United States, 483 U.S. 435 (1987) (That civil courts are "ill equipped to establish policies regarding matters of military concern is substantiated by the confusion evidenced in military court decisions attempting to apply the service connection approach."); Bums v. Wilson, 346 U.S. 137, 140 (1953) (plurality opinion) ("The rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty, and the civil courts are not the agencies which must determine the precise balance to be struck in this adjustment. The Framers expressly entrusted that task to Congress.")

(28.) Although the civilian criminal system was not established to effectively deal with military members committing uniquely military offenses, military members may be tried by the civilian criminal system for the commission of traditional offenses. R.C.M. 201(d)(2). An act or omission which violates both the UCMJ and local criminal law, foreign or domestic, may be tried by court-martial, or by a proper civilian tribunal, foreign or domestic.

(29.) R.C.M. 202; see also Art. 2, Persons subject to the code, UCMJ. The power granted Congress "To make Rules" to regulate "the land and naval Forces" is to be construed as restricting court-martial jurisdiction to persons who have a relationship with the armed forces. Quarles, supra note 23, at 15.

(30.) Judge Everett asks, "how would US civilian courts be able to operate overseas? How would a jury or grand jury be obtained? What civilian judges would be chosen to mete out justice on the frontlines in Korea, where the witnesses might be stationed? If no civilian jury were provided, would accused persons be willing to entrust their fates to one man, even though he was a civilian?" Supra note 21, at 4.

(31.) Soloria v. United States, 483 U.S. 435, 439 (1987). The Supreme Court rejected the "service-connection" requirement before jurisdiction could attach for court-martial purposes. The practical effect of the holding is that military members are subject to the UCMJ and may be tried for violations whether the crime occurred on or off duty, on or off the military installation.

(32.) For example, the North Atlantic Treaty Organization Status of Forces Agreement delineates criminal jurisdiction between the sending states and receiving states. The German government has agreed to a general waiver of their jurisdiction due to the United States military's proven ability to handle disciplinary problems through the UCMJ. North Atlantic Treaty Organization, Status of Forces Agreement, Supplementary Agreement, Art. 19, para. 1. effective 1 Jul 63 (TIAS 5351).

(33.) In 1999, the federal civilian criminal system averaged over nine months (over 270 days) from the time charges were filed to the time the case was concluded. BUREAU OF JUSTICE, COMPENDIUM of FEDERAL JUSTICE STATISTICS (1999). In 1999, the Air Force military justice system averaged 126.6 days for general courts-martial from preferral of charges until case completion and 151.7 days from preferral until final action by the convening authority. Statistics maintained by the Air Force Military Justice Division (1999) (on file).

(35.) Robert Sherril, Military Justice is to Justice as Military Music is to Music (Harper & Row 1970).

(36.) Michael I. Spak & Jonathon P. Tomes, Courts-Martial: Time to Play Taps?, 28 SW. U. L. REV 481 (1999). The authors argue that court-martial jurisdiction should be limited to service members serving overseas and during wartime.

(34.) Everett, supra note 21, at 4.

(37.) The commander serves as the keystone for the operation of the military criminal process. See David A. Schlueter, Military Criminal Justice Practice and Procedure (5th ed. 2000).

(38.) Marshal Maurice de Saxe (1696-1750), My Reveries Upon the Art of War (published posthumously in 1757).

(39.) Supreme Court has held that great deference must be given to commanders in exercising their professional judgment, even when Constitutional rights are infringed. Goldman v. Weinberger, 475 US 503, 507 (1986).

(40.) Force Instruction (API) 36-2907, Chapter 3, Administrative Counselings, Admonitions, and Reprimands (1 May 1997).

(41.) Article 15 provides a means whereby military commanders may impose nonjudicial punishment for minor infractions of discipline. Its use permits the services to reduce substantially the number of courts-martial for minor offenses, which result in stigmatizing and impairing the efficiency and morale of the person concerned. See generally S. Rep. No. 1911, 87th Cong., 2d Sess., U.S.Code Cong. & Ad. News 2379, 2380-82 (1962).

(42.) See David A. Schlueter, Military Criminal Justice Practice and Procedure 114 (5th ed. 2000).

(43.) "Since the punishment is nonjudicial, it is not considered a conviction of a crime and in this sense has no connection with the military court-martial system." S. Rep. No. 1911, 87th Cong., 2nd Sess. 2, reprinted in 1962 U.S. Code Cong. & Admin. News 2379, 2380.

(44.) Air Force Instruction (API) 51-202, Nonjudicial Punishment, para. 4.9.

(45.) Air Force policy is to provide legal counsel to an individual receiving nonjudicial punishment. Supra at 58, para. 4.7. The other services have different policies as to when legal counsel is authorized.

(46.) The range of punishment is limited by both the commander's and service member's rank. For example, a captain may only impose forfeitures of not more than seven days pay, whereas a lieutenant colonel may take forfeitures of 30 days. This ensures that more extensive punishment is only imposed by more experienced officers. See generally Part V, MCM, for authorized punishments.

(47.) MCM, Part V, para 1(c).

(48.) MCM, Part V, para 5b, Authorized maximum punishments.

(49.) MCM, Part V, para 3, Right to demand trial.

(50.) Art.15(a), UCMJ. A service member has the right to decline nonjudicial punishment and demand trial by court-martial unless the individual is attached to or embarked upon a vessel.

(51.) Exculpatory evidence tends to establish a criminal defendant's innocence while inculpatory evidence tends to show one's involvement in a crime. See Black's Law Dictionary 5 77-8 (7th ed. 1999).

(52.) R.C.M. 304(a)(1). Orders directing a person to do or refrain from doing specified acts.

(53.) R.C.M. 304(a)(2). Moral restraint of a person by oral or written orders directing the person to remain within specified limits. The person can usually perform full military duties. R.C.M. 304(a)(3). Arrest in military practice is a form of moral, as opposed to physical restraint. An individual under arrest may be required to perform full military duties but may be required to take part in routine duties. This form of restraint is generally more confining than restriction.

(54.) R.C.M. 304(a)(4). Physical restraint imposed by order of competent authority.

(55.) R.C.M. 304(h)(2)(B)(iv) requires the commander to direct a prisoner's release from pretrial confinement unless the commander believes upon probable cause, that is, upon reasonable grounds, that less severe forms of restraint are inadequate.

(56.) R.C.M. 304 and R.C.M. 305 detail the extensive procedural requirements necessary to confine a service member prior to trial. A probable cause determination must be made within 48 hours after imposition of confinement. Within 72 hours, the commander must prepare a written memorandum stating the reasons for continued confinement. Pretrial confinement is subject to judicial review once the charges have been referred to trial. See County of McLaughlin v. Riverside, 111 S. Ct. 1661, (1991).

(57.) R.C.M. 305(i)(2). No later than 7 days after confinement begins, an independent review must be conducted.

(58.) R.C.M. 305(f). "...military counsel shall be provided to the prisoner."

(59.) R.C.M. 305(h)(2)(B). Any person subject to trial by court-martial may be confined prior to trial if there is both probable cause and necessity. Probable cause to order pretrial confinement exists when there is a reasonable belief that an offense triable by court-martial has been committed, the person confined committed it, and confinement is required by the circumstances.

(60.) Courtney v. Williams, 1 M.J. 267, 271 (C.M.A. 1976). "We believe, then, that a neutral and detached magistrate must decide more than the probable cause question. A magistrate must decide if a person could be detained and if he should be detained. The consequences of detention are too important to require less."

(61.) R.C.M. 305(g).

(62.) R.C.M. 305(k). Such credit shall be computed at the rate of one day of credit for each day of confinement. The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances. See United States v. Allen, 17 M.J. 126 (C.M.A. 1984) and United States v. Mason, 19 M.J. 274 (C.M.A. 1985).

(63.) R.C.M. 306(b).

(64.) Art. 30, UCMJ. See also R.C.M. 307(a). Common Air Force practice is for the immediate commander to notify the member of the charges at this stage of the proceedings.

(65.) R.C.M. 307(c)(4).

(66.) Appendix as accusers are Art 1(9), UCMJ; 2 (Glossary). Persons serving thereafter precluded from acting in a variety of roles; i.e., convening authority, pretrial investigating officer, trial counsel, defense counsel, interpreter, reporter, escort, bailiff, clerk, or orderly. See also R.C.M. 405(d)(1).

(67.) The accuser is any person with personal knowledge of the charges who believes they are true in fact. Id.

(68.) R.C.M. 307(b)(1); R.C.M. 307(b)(2).

(69.) See generally R.C.M. 403.

(70.) R.C.M. 504(b)(4).

(71.) Art. 25(d)(2), UGMJ.

(72.) "The Uniform Code of Military Justice Art. 25(d)(2) states that the members should be selected on a "best qualified" basis, examining age, education, training, experience, length of service, and judicial temperament. However, once the defense comes forward and shows an improper jury selection, the burden is upon the government to demonstrate that no impropriety occurred." United States v. Roland, 50 M.J. 66, 69 (CAAF 1999).

(73.) Art. 37(a), UCMJ. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any military tribunal or any member thereof.

(74.) United States v. Osburn, 33 M.J. 810, 812 (AFCMR 1991). As we noted in our earlier decision, unlawful command influence can be either actual or apparent, United States v. Johnson, 14 U.S.C.M.A. 548, 34 C.M.R. 328 (1964), and in either form it is "the mortal enemy of military justice." United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085, (1987)); United States v. Biagase, 50 M.J. 143 (CAAF 1999) Unlawful command influence is an error of constitutional dimension. United States v. Rivers, 49 M.J. 434, 443 (CAAF 1998)

"Unlawful command influence is the mortal enemy of military justice. If the target of unlawful command influence is a court member or the military judge, then it violates the accused's right to an impartial forum. If unlawful command influence is directed at prospective witnesses to intimidate them from testifying, it violates an accused's right to have access to favorable evidence in violation of the Sixth Amendment and Art. 46, UCMJ. Where unlawful command influence is exercised, the court may not affirm findings and sentence unless it is satisfied beyond a reasonable doubt that the findings and sentence are not affected thereby." Id.

(75.) United States v. Kincheloe, 14 M.J. 40, 48 (C.M.A. 1982). Inherent in any judge's role are the requirements of impartiality and basic fairness to the parties. Military justice is firmly committed to the proposition that the court's actions and deliberations must not only be untainted, but must also avoid the very appearance of impurity.

(76.) United States v. Graf, 32 M.J 809, 811 (NMCMR 1990) ("any relationship that casts suspicion on whether a military judge is fair or impartial provides a basis for an accused to seek his disqualification.") R.C.M 902(b) identifies specific circumstances that are grounds for mandatory disqualification or recusal of military judges. R.C.M. 902(a) also provides for disqualification and recusal in more general terms, that is, when a military judge determines that under the circumstances of the case before him, if the facts were known by a reasonable man, his impartiality might reasonably be questioned. A military judge's denial of a challenge against him is reviewable for abuse of discretion. United States v. Allen, 31 M.J. 572 (N.M.C.M.R. 1990). Furthermore, Art. 26 and Art. 66, when read in conjunction with Art. 37, UCMJ, as enforced by Art. 98, UCMJ, provide both the accused and the military judge with a mechanism to bring to light, within the public forum of a court-martial, an attack on the military judg e's independence, or lack thereof, due to unlawful command influence-the perniciousness of which is the same whether it be direct or indirect. United States v. Hagen, 25 M.J. 78 (C.M.A. 1987), cert. denied, 484 U.S. 1060, (1988).

(77.) R.C.M. 705. An accused and the convening authority may enter into a pretrial agreement. The accused will plead guilty or waive certain rights in return for some specified relief from the convening authority.

(78.) R.C.M. 703(d). When the employment at Government expense of an expert is considered necessary by a party, the party shall, in advance of employment of the expert, and with notice to the opposing party, submit a request to the convening authority to authorize employment and to fix the compensation for the expert.

(79.) R.C.M. 704(c), Discussion. Only general court-martial convening authorities are authorized to grant immunity. R.C.M. 704(a), Discussion. Immunity ordinarily should be granted only when testimony or other information from the person is necessary to the public interest, including the needs of good order and discipline, and when the person has refused or is likely to refuse to testify or provide other information on the basis of the privilege against self-incrimination.

(80.) R.C.M. 1107(d)(1)(A). The convening authority may in his discretion order a rehearing as to some or all offenses which findings of guilty were entered or as to the sentence only.

(81.) See generally R.C.M. 1107.

(82.) R.C.M 1107(d)(1).

(83.) General Mitchell, a strong advocate of air power, was tried and convicted by a General Court-Martial for being critical of War Department policies (1926).

(84.) Accused of killing unarmed Vietnamese civilians in the village of My Lai, Republic of South Vietnam, Lt Galley was convicted by general court-martial in 1973. United States v. Galley, 22 C.M.A. 534, 48 C.M.R. 19 (1973).

(85.) The right to object to trial by summary court-martial must be exercised prior to arraignment. Art. 20, UCMJ.

(86.) The convening authority designates an officer to sit as the summary court-martial. This officer need not be a lawyer, but should be of judicial temperament and further qualified because of age, education, training, and experience. See R.C.M. 1301(a). These qualifications are implied by Art. 25(d)(2), UCMJ.

(87.) Art. 27, UCMJ, requires detailed defense counsel for only general and special courts-martial. However, Air Force Instruction (AFI) 5 1-201, paragraph 5.2.2.4, Administration of Military Justice (Oct 1997) requires defense counsel be made available to the accused in summary courts-martial as well. See also Lieutenant Colonel Michael H. Gilbert, Summary Courts-Martial.: Rediscovering the Spumoni of Military Justice, 39 A.F. Law Rev. (1996).

(88.) Art. 24, UCMJ sets out the requirements for who may convene summary courts-martial.

(89.) Art. 20, UCMJ, limits the jurisdiction of a summary court martial to confinement to no more than one month, hard labor without confinement to no more than 45 days, restriction to specified limits for no more than two months and forfeiture of no more than two-thirds pay for one month.

(90.) Art. 23, UCMJ. Special court-martial convening authorities are typically commanding officers of a district, garrison, fort, camp, station, Air Force base, auxiliary air field, or other place where members of the Army or Air Force are on duty.

(91.) Art. 19, UCMJ, defines the jurisdiction of a special court-martial. A minimum of three members must be detailed to the court-martial panel.

(92.) Counsel in military courts-martial are certified as competent to act as counsel under Article 27(b), UCMJ, by The Judge Advocate General. To be certified, the attorneys must be members of the federal bar or the highest court of any state.

(93.) Art 34, UCMJ.

(94.) In the Army, Air Force and Coast Guard, the judges wear black judicial robes, although Navy and Marine judges still appear in their military uniform. See Uniform Rules of Practice before Air Force Courts-Martial, Rule 4.3 (May 2000).

(95.) Art. 39, UCMJ.

(96.) At the arraignment portion of the Article 3 9(a) session, the accused must state on the record his plea, choice of counsel, and the forum to decide his case. Id.

(97.) R.C.M. 918(c). Findings may be based on direct or circumstantial evidence. Only matters properly before the court-martial on the merits of the case may be considered. A finding of guilty on any offense may be reached only when the factfinder is satisfied that guilt has been roved beyond a reasonable doubt.

(98.) R.C.M. 201(f)(2)(B) and R.C.M. 1103(b)(2) has been amended by Executive Order 13262 to implement changes to Article 19, UCMJ (10 U.S.C. 819) legislated in section 577 of the National Defense Authorization Act for Fiscal Year 2000, Public Law No. 106-65, 113 Stat. 512 (1999) increasing the jursidictional maximum punishment at special courts-martial to one year confinement and forfeitures of 2/3 pay for 12 months.

(99.) For a capital case referred to a general court-martial there must be at least twelve members detailed to the panel (for offenses committed after 31 Dec 02). See National Defense Authorization Act for Fiscal Year 2001, Bill S. 1438, (ss)(ss) 106 398.

(100.) Art. 18, UCMJ, establishes the jurisdiction of general courts-martial.

(101.) Art. 32, UCMJ. No charge or specification may be referred to a general court-martial for trial until a thorough and impartial investigation of all the matters set forth therein has been made. See also R.C.M. 405(a).

(102.) By its express terms, the Fifth Amendment right to grand jury indictment is inapplicable to the armed forces. "No person shall be held to answer for a capital, or otherwise infamous, crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger..." U.S. Coast. Amend. V.

(103.) R.C.M. 405(a), Discussion.

(104.) The discussion to R.C.M. 405(d)(1) states the Investigating Officer should be an officer in the grade of major or lieutenant commander or higher or one with legal training.

(105.) U.S. v. Payne, 3 M.J. 354, 355 (CMA 1977).

(106.) See Art. 37 and Art. 98, UCMJ.

(107.) R.C.M. 405(h)(3). "Access by spectators to all or part of the proceedings may be restricted or foreclosed in the discretion of the commander who directed the investigation or the investigating officer." The discussion after the rule says, "Ordinarily the proceedings of a pretrial investigation should be open to the public." In San Antonio Express-News v. Morrow, 44 M.J. 706 (CMA 1996), the Court of Military Appeals found a presumption in favor of open hearings.

(108) United States v. Craig, 22 C.M.R. 466 (A.B.R. 1956), aff'd, 8 U.S.C.M.A. 28, 24 C.M.R. 28 (1957). (The investigating officer must allow the defense to examine all matters considered by the investigation officer, without exception).

(109.) Art. 32(b), UCMJ, "The accused shall be advised of the charges against him and of his right to be represented at that investigation by counsel... . At that investigation, full opportunity shall be given to the accused to cross-examine witnesses against him if they are available and to present anything he may desire in his own behalf, either in defense or mitigation."

(110.) See David A. Schlueter, Military Criminal Justice Practice and Procedure 324 (5th ed. 2000).

(111.) Article 38(a), UCMJ; R.C.M. 502(d)(5). The trial counsel shall prosecute cases on behalf of the United States and shall cause the record of trial of such cases to be prepared.

(112.) Art. 27, UCMJ. In the case of special court-martial, the accused shall be afforded the opportunity to be represented at the trial by counsel having the qualifications stated above unless counsel having such qualifications cannot be obtained on account of physical conditions or military exigencies.

(113.) Art. 46, UCMJ, states that the trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence.

(114.) R.C.M. 701(c). See United States v. Eshalorni, 23 MJ 12, 24 (CMA 1986).

(115.) R.C.M. 701, 914. See also MRE 304(d)(1), 311(d)(1), 321(c).

(116.) R.C.M. 703(c)(2).

(117.) R.C.M. 703(b)(1). In United States v. Ndanyi, 45 M.J. 315, 319 (CAAF, 1996), the Court of Appeals for the Armed Forces said "it is well-established that an accused service member has a limited right to expert assistance at government expense to prepare his defense."

(118.) A civilian suspect must either pay for that representation or prove, generally once charges already have been brought, that she is indigent and should have court-appointed counsel. See Gideon v. Wainwright, 372 U.S. 335 (1963).

(119.) Air Force Legal Services Agency Operating Instruction 1, Air Force Military Defense Counsel Charter (22 June 1998).

(120.) Air Force Manual 51-204, United States Air Force Judiciary, 4 (1 July 1995).

(121.) Rostker v. Goldberg, 453 U.S. 57 (1981). Congress is not free to disregard the Constitution when it acts in the area of military affairs. In that area, as any other, Congress remains subject to the limitations of the Due Process Clause, but the tests and limitations to be applied may differ because of the military context. See also Courtney v. Williams, 1 M.J. 267, 270 (CMA 1976).

(122.) United States v. Ezell, 6 M.J. 307 (CMA 1979). The protections of the Fourth Amendment and, indeed, the entire Bill of Rights, are applicable to the men and women serving in the military services of the United States unless expressly or by necessary implication they are made inapplicable.

(123.) United States v. Bubonics, 45 M.J. 93 (CAAF 1996). If, instead, the maker's will was overborne and his capacity for self-determination was critically impaired, use of his confession would offend due process. The burden in this regard is on the Government, as the proponent of admission of the evidence, to prove by a preponderance of the evidence that the confession was voluntary.

(124.) R.C.M. 703; United States v. Morris, 52 M.J. 193 (CAAF 1999).

(125.) Art. 27, UCMJ; R.C.M. 401(b).

(126.) See generally M.R.E. 301 -321.

(127.) 417 U.S. 733 (1974).

(128.) Id, at 758.

(129.) United States v. Green, 22 MJ 711 (ACMR 1986). In United States v. Martin, 5 CMR 102 (1952), the Court of Military Appeals set forth the seminal test for assessing the legality of an order or regulation: All activities which are reasonably necessary to safeguard and protect the morale, discipline and usefulness of the members of a command and are directly connected with the maintenance of good order in the services are subject to the control of the officers upon whom the responsibility of the command rests.

(130.) The Supreme Court celebrated the Miranda decision, which gave civilians the right to remain silent or ask for an attorney in 1966, fully 15 years after Congress enacted Article 31 into federal law. M.R.E. 305; Miranda v. Arizona, 384 U.S. 439 (1966). See Major General Jack L. Rives and Major Steven J. Ehlenbeck, Civilian Versus Military Justice In the United States: A Comparative Analysis, A.F.L. Rev., this volume, for a comparison between the civilian and military justice systems.

(131.) Art. 31(b), UCMJ, reads: "No person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him of the nature of the accusation and advising him that he does not have to make any statement regarding the offense of which he is accused or suspected and that any statement made by him may be used as evidence against him in a trial by court-martial."

(132.) M.R.E. 301(f). See United States v. Jordan, 38 M.J. 346 ("Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.").

(133.) Art. 25(d)(2), UCMJ. Members should be selected on a "best qualified" basis, examining age, education, training, experience, length of service, and judicial temperament. However, once the defense comes forward and shows an improper jury selection, the burden is upon the government to demonstrate that no impropriety occurred. United States v. Roland, 50 M.J.66 (CAAF 1999).

(134.) An enlisted accused has the absolute right to request enlisted members on his court-martial panel. United States v. McClain, 22 M.J. 124 (CMA 1986).

(135.) Air Force Instruction (AFI) 36-2002, Attachment 2, para. 2.1.5. (1999). Ninety-nine percent of all...enlistments must be high school graduates or higher.

(136.) Report on the Method of Selection of Members of the Armed Forces to Serve on Courts-Martial, DOD Joint Service Committee on Military Justice, Aug. 1999, at 8.

(137.) Id. at 46.

(138.) Id. at 44.

(139.) These safeguards include Article 37, UCMJ, Mil. R. Evid. 606(b), voir dire, and remedial action by the trial and appellate courts. Id. at 46.

(140.) R.C.M. 912(f)(2).

(141.) Art. 41, UCMJ.

(142.) Judge Everett used the following example to show the importance of having members with military experience: "in a trial for dereliction of duty [for example], a court of military persons might be much better qualified by experience to understand the nature of the duties in which an accused supposedly had been derelict" than would a jury of civilians. Everett, supra note 21 at 5.

(143.) Art. 37, UCMJ. Any attempts to coerce or, by lawful means, influence the action of a court-martial or any member involved are criminal.

(144.) R.C.M. 921(c); see also R.C.M. 1006(d).

(145.) Unanimous verdicts are not constitutionally required. Johnson v. Louisiana, 406 U.S. 356 (1972) (upholding Louisiana statute allowing conviction by three-fourths majority); Apodaca v. Oregon, 406 U.S. 404 (1972) (upholding Oregon's ten-of-twelve majority rule). Moreover, "the right to trial by jury guaranteed by the Sixth Amendment is not applicable to trials by courts-martial or military commissions." Whelchel v. McDonald, 340 U.S. 122 (1950). "The constitution of courts-martial, like other matters relating to their organization and administration is a matter appropriate for congressional action." Id. See also Mendrano v. Smith, 797 F.2d 1538, 1544 (10th Cir. 1986) ("Statements by the [Supreme] Court and the courts of appeals reflect the universal view that members of the military have no right to jury trial in court-martial proceedings."). The same two-thirds holds for sentencing except that three-fourths are required for sentencing if the accused is to be confined for more than ten years and a unani mous vote is required for sentencing in a capital case.

(146.) The military judge at a special or general court-martial acts as the presiding officer. He conducts pretrial sessions at which a defendant is arraigned and pleas are entered. He rules on all legal questions and he instructs the members on the laws and procedures to be followed in the case. R.C.M. 801(a). When a military judge presides over a court-martial composed of panel members, the members decide guilt or innocence and, when necessary, impose sentence. R.C.M. 921, 1006. When a military judge sits alone, he decides those issues. Art. 16, UCMJ. The sentence imposed by any type of court-martial does not become final until the officer who convened the court-martial approves it. Art. 60, UCMJ.

(147.) Military judges are subject to the ABA Code of Judicial Conduct Canon 1 (1972), which requires them to uphold the independence and integrity of their courts. See also TJAG Policy Letter 3, Uniform Code of Judicial Conduct for Military Trial and Appellate Judges and Uniform Regulations and Procedures Relating to Judicial Discipline (1998).

(148.) Art. 26(c), UCMJ, states that:

The military judge of a general court-martial shall be designated by the Judge Advocate General, or his designee, of the armed force of which the military judge is a member for detail in accordance with regulations prescribed under subsection (a). Unless the court-martial was convened by the President or the Secretary concerned, neither the convening authority nor any member of his staff shall prepare or review any report concerning the effectiveness, fitness, or efficiency of the military judge so detailed, which relates to his performance of duty as a military judge.

See also R.C.M. 503(b). A commissioned officer who is certified to be qualified for duty as a military judge of a general court-martial may perform such duties only when he is assigned and directly responsible to the Judge Advocate General, or his designee, of the armed force of which the military judge is a member and may perform duties of a judicial or nonjudicial nature other than those relating to his primary duty as a military judge of a general court-martial when such duties are assigned to him by or with the approval of that Judge Advocate General or his designee.

(149.) MCM, 1984, Part III. See generally Lederer, The Military Rules of Evidence, Origins and Judicial Implementation, 130 Mil. L. Rev. 5 (1990).

(150.) M.R.E. 101. See also M.R.E. 1101.

(151.) M.R.E. 1102 requires any amendments to the Federal Rules of Evidence be incorporated into the Military Rules of Evidence 18 months after the effective date of such amendments unless the President takes action to the contrary.

(152.) See Saltzburg, Schinasi & Schlueter, Military Rules of Evidence Manual (4th ed. 1997). The rules may be relaxed by the judge at defense request during sentencing procedures and are not applied (with the exception of privileges) to proceedings involving search authorizations or pretrial confinement hearings.

(153.) R.C.M. 1105 allows the accused to submit to the convening authority any matters that may reasonably tend to affect the convening authority's decision whether to disapprove any findings of guilty or to approve the sentence.

(154.) R.C.M. 1107(b)(1) states that the action to be taken on the findings and sentence is within the sole discretion of the convening authority and is a matter of command prerogative.

(155.) Art. 66, UCMJ.

(156.) 10 U.S.G.S. [ss] 942. The law specifically prohibits an individual who retired after 20 years of active service in the armed forces from being appointed to the court of appeals.

(157.) Decisions of the United States Court of Appeals for the Armed Forces are subject to review by the Supreme Court by writ of certiorari as provided in section 1259 of Title 28. See also Art. 67a, UCMJ.

(158.) Supra at note 156.

(159.) David A. Schlueter, Military Criminal Justice Practice and Procedure, 3 (5th ed. 1999).

LIEUTENANT COLONEL, JAMES B. ROAN *

CAPTAIN CYNTHIA BUXTON **

* Lt Col James B. Roan, USAF, is the Deputy Chief Military Justice Division, Air Force Legal Services Agency, Boiling AFB, District of Columbia; Bachelor of Business Administration (cum laude), 1986, University of Oklahoma; Masters of Business Administration, 1989, University of North Dakota; Juris Doctor, 1993, Washington University in St Louis.

** Capt Cynthia Buxton, USAF, is the Deputy Chief Joint Service Policy and Legislation Branch, Military Justice Division, Air Force Legal Services Agency, Boiling AFB, District of Columbia; Bachelor of Science (cum laude), 1992, University of Nebraska; Juris Doctor, 199S, Creighton University in Omaha.
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