Document created: 31 December 03
Air University Review, May-June
1972
Lieutenant
Colonel George D. Schrader
Condemning, faultfinding, and criticizing have become so commonplace in our contemporary society that one often wonders whether there is anything of value in any system, establishment, or organization. Generalities, half truths, hearsay, and isolated incidents provide the basis for much of the criticism.
Such criticism is basically unfair because it alleges fault without supporting facts and does an injustice to the institution being criticized. It is extremely difficult to defend or extol the virtues of any institution against general allegations and charges that are not supported with specific facts. In most such instances, those who defend against the attacks must begin with the premise that the institution being defended is not perfect. But, on the other hand, what man-made system or organization, considered in the social context, is not subject to improvement? As Winston Churchill once stated: “Many forms of government have been tried and will be tried in this world of sin and woe. No one pretends that Democracy is perfect or all-wise. Indeed, it has been said that Democracy is the worst form of government except all those other forms that have been tried from time to time.”
A paraphrase of Sir Winston’s remarks can apply to the military justice system, also: the military justice system is not perfect or all-wise; it is the worst system of justice until it is compared with all others. Admittedly, our military justice system is not a panacea, but in comparison with civilian criminal systems it is in many respects definitely superior, and it cannot, in general, be characterized as inferior.
The modern military justice systems reflects the enlightened thinking of the United States Congress, which makes the rules that govern the armed forces; the President, who implements congressional legislation; and members of the Department of Defense who administer the military justice system.
The Uniform Code of Military Justice (UCMJ) became effective in 1951. This legislation introduced a revolutionary concept and provided members of the armed forces a system of justice unparalleled in history. Several major changes came with the Military Justice Act of 1968 and the Manual for Courts-Martial (revised) 1969. In the paragraphs that follow, let us consider a few significant aspects of our military justice system and its function within the Department of the Air Force.
In 1966 the Supreme Court of the
The applicability of Article 31 is broader in other respects than the
advice concerning the right to counsel prescribed by the Supreme Court. The
Supreme Court decision relates to “custodial interrogations,” but Article 31
is applicable, regardless of custodial status. Unlike most civilian systems,
the protective warning requirements of Article 31 extend to the execution
of handwriting samples, speaking for purposes of voice identification, and any
physical acts equating to the making of a statement performed in response to
questioning. Therefore, the protection afforded military personnel under
Article 31 is broader than the protection provided by the Fifth
Amendment to the Constitution of the
The Air Force judge advocate, appointed free of charge to represent a suspect at an interrogation, is a commissioned officer. He is a graduate of an accredited law school and a member of the bar of a federal court or the highest court of a state. Under current procedures, The Judge Advocate General of the Air Force may also certify him as competent to perform duties as a defense counsel for courts-martial. This is normally accomplished upon his successful completion of the Air Force Judge Advocate Staff Officer Course, a six-week resident course for military lawyers. Unless he is certified, he is not eligible to serve as chief counsel before general or special courts-martial.
A member of the Air Force brought to trial has the right to an appointed military attorney with these qualifications. He also has the right to request other judge advocates to act as individual counsel on his behalf, and he may hire a civilian attorney at his own expense. He also has the right to appointed military counsel or retained civilian counsel at each appellate level. In addition, the record of trial is prepared and provided at no expense to either the accused or his appellate counsel. These rights far exceed those normally afforded civilians.
For many years the Fourth Amendment was not considered applicable to the armed forces. However, the Court of Military Appeals has, by judicial decision, extended the substantive rights contained therein to military personnel. Hence, a member of the armed forces is protected against unreasonable searches. The Court of Military Appeals has placed great importance on the rights of an individual as guaranteed by the Fourth Amendment and on the protection embodied therein as determined by the Supreme Court.
In the armed forces a commander may authorize a search of the area over which he has authority, but in so doing he must have probable cause. This means that the person who authorizes a search must have reasonable grounds for believing that an individual possesses criminal goods or that such goods are located on the premises to be searched. The touchstone in this instance is the belief or knowledge of the commander authorizing the search. He must apply the same standards as those applied by a magistrate in the civilian community. The commander’s authority to authorize a search is frequently criticized on the basis that he cannot act as a neutral and detached magistrate in performing this judicial function. However, judicial review of the factual basis for authorization to search is a major deterrent to the abuse of this authority. In addition, Air Force Form 1176, “Authority to Search and Seize,” requires the commander to set forth certain prescribed information, such as the premises to be searched and the specific property to be seized. If the trial court or appellate authorities determine that the commander did not have probable cause, they will exclude the evidence or reverse a conviction.
It has been proposed that military judges should be granted the sole authority to authorize a search. However, the limited number of available military judges presents problems in implementing such a procedure. In view of the requirements for probable cause, judicial review, and use of AF Form 1176, the military system could be brought fully within the procedural aspects of the Fourth Amendment with only minor additions, such as affidavits from those requesting authority to search.
Although the Fifth Amendment specifically exempts the armed forces from the requirement of a grand jury indictment, Article 32 UCMJ specifies that charges cannot be referred to a general court-martial without an impartial pretrial investigation. This investigation is conducted by an officer, often an attorney, usually appointed by a base commander. Actually, it is a discovery proceeding, wherein the accused is represented by appointed or requested military counsel, or he may hire civilian counsel at his own expense. He has the opportunity to examine all the government’s evidence, cross-examine government witnesses, call witnesses, submit evidence, testify, raise objections, and submit motions.
The investigating officer makes recommendations concerning the disposition of the charges. The staff judge advocate of the commander authorized to convene general courts-martial reviews the investigation and recommendations. The commander may not refer a case to trial unless he finds that the charges allege offenses and that trial is warranted by evidence indicated in the report of investigation. A copy of the complete investigation and the advice of the staff judge advocate are provided to the accused. The pretrial investigation and all correspondence pertaining thereto are also attached to the record of trial.
In contrast, civilian grand jury proceedings are generally secret: the accused is not present, he is not represented by counsel, and he cannot confront witnesses against him. Furthermore, there is no uniformity in the grand jury system. Some states do not use the system at all, and others make only limited use of it.
Thus, we can conclude that the accused in the military service is the beneficiary of a superior system when individual rights are involved with regard to legal representation, self-incrimination, and pretrial investigation. Even in the area of search and seizure, where Fourth Amendment considerations are not fully applicable to the serviceman, he is afforded protection virtually equal to that guaranteed his civilian counterpart.
Another development worthy of comment is the establishment of the Air Force Trial Judiciary Division, which has its counterparts in the other services. Congress provided the basis for this organization in the Military Justice Act of 1968. In keeping with this legislation, The Judge Advocate General of the Air Force designates certain officers, in the rank of colonel and lieutenant colonel, to serve in judicial circuits throughout the world and preside as military judges on general and special courts-martial. Members of the Air Force Trial Judiciary have the same qualifications as do counsel, perform only judicial duties, and function under the sole supervision of The Judge Advocate General or his designee. Hence, they are completely removed from the control of field commanders.
These officers perform functions very much like those of any trial judge of a federal or state court. There are some exceptions, however. For example, they do not have authority under the All Writs Act to issue writs. They do not have authority to sentence, except in cases where the accused requests trial by judge alone, in which case the accused must first be advised as to who will be his judge. In 1970 approximately 45 percent of the general courts-martial in the Air Force were tried by judge alone, an obvious reflection of the faith Air Force personnel undergoing trial have in the independent judiciary.
In addition to the limited number of judges in the Air Force Trial Judiciary, The Judge Advocate General also certifies qualified judge advocates to serve as military judge for special courts-martial. It is Air Force policy that either a member of the Trial Judiciary or another judge advocate certified as a military judge preside at all Air Force special courts-martial.
Within the framework of current legislation, the Air Force is developing and
testing in the southeastern
This program, with a target date for worldwide implementation in fall 1972, has two major goals. First, it will remove both the judge and counsel from the control of the field commander and, therefore, eliminate the possibility of so-called command influence. Second, it will provide both the accused person and the government with more capable and experienced counsel. For an accused Air Force member, this means that he has the right to be represented by local counsel at his own base, by district defense counsel, by other military counsel if requested and reasonably available, and by a civilian attorney at his own expense. Upon request, additional military counsel will be appointed to represent him in appellate proceedings before the Court of Military Review and the Court of Military Appeals. These judge advocates specialize in appellate court proceedings. No other judicial system can equal the right to free legal representation that is afforded a member of the Air Force.
The UCMJ requires Courts of Military Review to review cases in which the approved sentence affects a general officer, extends to death, or includes dismissal, dishonorable discharge, bad conduct discharge, or confinement in excess of one year. In the Air Force, the Court of Military Review is presently a six-man appellate court, composed of judge advocates in the rank of colonel or lieutenant colonel. This court makes decisions as to both law and fact, but otherwise it is similar to an intermediate court of appeals in the federal or state system.
Since the Court of Military Appeals considers appeals from all the services, it is the Supreme Court of the military system. It is composed of three civilians, appointed by the President with the advice and consent of the Senate, for terms of 15 years. This court has vast powers to grant writs for appropriate relief, and it reviews all cases in which the sentence affects a general officer or extends to death. It also reviews all cases which the Judge Advocates General in all the services send to it for review and cases which it agrees to review based on petition by the accused. Cases certified to the court by a Judge Advocate General may concern a decision of a Court of Military Review favoring either the government or the accused. The Court of Military Appeals can affirm or reverse decisions of the Court of Military Review, set aside findings or sentence, order rehearings, or dismiss charges.
In addition to the authority of the Judge Advocates General to grant new trials, Congress has authorized them to review any record of trial that has not been reviewed by a Court of Military Review. This authority extends to vacating or modifying any court decision in whole or in part based on newly discovered evidence, fraud on the court, lack of jurisdiction, or error prejudicial to the substantial rights of the accused. Therefore, each accused in the armed forces may apply for a judicial review of his conviction at a level above the command taking final action on the record of trial. This judicial review does not deprive the accused of his right to petition the Secretary of the service concerned for correction or removal of in justices through administrative proceedings.
It is doubtful that any civilian criminal system provides the broad scope of
appellate processes available to members of the
Another innovation resulting from the Military Justice Act of 1968 is the provision for deferred confinement. Under the Uniform Code of Military Justice, any period of confinement included in a sentence begins from the date it is ad judged by the court-martial. The deferred confinement provision authorizes an accused to make application to a specified commander for postponement of his confinement. If deferment is granted, the accused is not required to post financial bond. Although courts-martial sentences are expressly excluded from the Federal Bail Reform Act of 1966, this provision for deferred confinement is an adequate substitute uniquely applicable to the military services. Extension of the authority to defer confinement to the military judges and the Judge Advocates General of the respective services would perhaps increase the value of this new provision.
In considering these concepts of military justice, one must also note that the constant connecting links are the procedural protections and rights to counsel to which military personnel are entitled. In these areas, an accused member of the military service is afforded more rights at each stage of the pretrial, trial, and post-trial proceedings than in civilian life, and he has a far greater opportunity for review of his case, regardless of how minor his infraction may be.
Much of the criticism of the military justice system is directed at the integrity of the system. Unfortunately, some faultfinders with misguided zeal downgrade it without making any corresponding recommendation for improvement. Like all nonmechanical systems, the military justice system is no better than the people who are charged with the responsibility for its operation; like any institution, it is only as sound as the character of the people who administer it.
To state that loyal, dedicated judge advocates, commanders, and civilian attorneys in this system lack integrity is a very serious charge. The military justice system depends on the performance of people in positions of trust. These people are charged with the responsibility of maintaining a professional legal system of high standards within the framework and society in which it was designed to function.
The Military Justice Act of 1968 became effective only in August 1969. Perhaps some suggestions for change are deserving of congressional consideration, but there is much that can be and is being accomplished within the framework of existing legislation. Therefore, it seems prudent to allow the system to mature fully without the enactment of further changes at this time.
Military justice is truly a dynamic area of the law, developing within the
concepts of American jurisprudence in keeping with congressional legislation
and decisions of the Supreme Court of the
The late Justice Hugo Black once said: “Under our constitutional system, courts stand against any winds that blow, as havens of refuge for those who might suffer because they are helpless, weak, outnumbered or because they are nonconforming victims of prejudice and public excitement.” Have military courts and the military justice system met this test? The answer by any standard must be yes. The military justice system has not merely met the test; it holds a position of pre-eminence in protecting the rights of the individual.
AU Institute for Professional
Development
Lieutenant Colonel George D. Schrader (M.B.A.,
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