Military justice on trial: Military courts have room for improvement

By: KATHLEEN A. DUIGNAN - Commentary: | Tuesday, August 22, 2006 10:13 AM PDT ∞

The cities of Haditha, Hamdania and Mahmoudiya in Iraq have lately become household names in the United States that are synonymous with courts-martial of our personnel for alleged crimes against Iraqi civilians arising from the war. These crimes include the very serious offenses of kidnapping, murder and rape.

These events have generated great public interest in military justice not seen since the Vietnam War and the court-martial of Lieutenant Calley for the unlawful killing of civilians at My Lai. This is the first time in many years that the military's system of criminal justice has raised any public interest or faced such potential public scrutiny.

Several bloggers, commentators and veterans groups have recently raised questions about whether the system is fairly treating the soldiers and Marines facing court-martial as a result of these reported events. Many have questioned whether those accused are being judged prematurely or unfairly.

Without addressing any of the alleged facts in these cases, it would be remiss not to look at the larger picture. Renewed public interest in the system provides a valuable opportunity to raise aspects of the military justice system that could benefit from further scrutiny or reform.

On the whole, those already familiar with the system ññ mostly those who have served or are currently serving in the military ññ believe the overall system to be a fair one. Some of the aspects of the military system that earn deserved praise include greater rights to remain silent, rights to free counsel and comprehensive pretrial discovery.

For instance, defense counsel and their clients have the right to attend the pretrial investigative proceedings known as Article 32 investigations. These investigations are the military equivalent of grand jury proceedings. Unlike civilian defendants, military counsel and the accused can attend these proceedings, cross-examine witnesses and present evidence to rebut the proposed charges. This is far different from the secretive civilian grand jury system, where only the prosecutor is permitted to attend and the testimony presented is sealed. Additionally, military accuseds of all ranks and salaries are assigned a free defense counsel. Only the indigent in the civilian system are accorded such a right.

Although these are notable benefits, there are those differences between the military and civilian systems worthy of discussion. First, contrary to many of our allies such as Canada and the United Kingdom, the United States system has a military judiciary that is not entirely independent. This is not to say that individual military judges are partial or biased. But, the system itself of appointment and promotion is not one that inspires confidence.

Becoming a member of the military judiciary is frequently not career-enhancing and it is well known that choosing to become a full-time military judge often results in "being passed over" ññ the military's equivalent of imposing a glass ceiling on promotion potential and eventually forced retirement. This situation forces those who aspire to the bench to make a difficult decision whether to accept a position that provides great professional satisfaction at potential personal cost, or to forfeit these opportunities in lieu of a different assignment that provides more promotion opportunity.

This issue, however, could be remedied in several proposed ways. Military judges could be provided fixed terms of office, like many of their civilian counterparts. This would at least guarantee that judges are not removed immediately from office for unpopular decisions. Another idea is to better solidify a military judge career path by establishing a "purple" judiciary. Potential judges from all of the military branches could be competitively screened and serve without regard to "careerist" concerns. This would eliminate service stovepipes, enhance judicial education and opportunity and mitigate the effect of the current system, where military judges compete for promotion against the very same lawyers providing the government's advice.

Moreover, military justice could benefit considerably from moving to a system where the members (or jury, in civilian terms) are chosen at random, rather than being handpicked by the convening authority. The convening authority is that official who is in charge of the command and the one who determines whether to bring charges in the first instance.

This is not to say that military members are predisposed toward conviction. In fact, in my experience, military members are better educated and more interested in serving than their civilian counterparts. Their sense of duty generally makes them better suited to firmly apply legal standards and hold the government accountable to its burden of proof.

But it is noteworthy that appearances are equally as important as results. The current rules that require the convening authority to appoint members based upon detailed factors, such as "age, education, training, experience and length of service," give the appearance that the panel is beholden to the commander who selected them for duty.

Finally, the military justice system could benefit from a transparent docketing system that is accurate, current and easily available to the public, just as the civilian courts provide. In this Internet age where courts are increasingly posting their scheduled cases online to provide public transparency and access, there is no reason why courts-martial should not be equally as open.

According to law, both Article 32 hearings and the courts-martial themselves are required to be publicly open. They are only supposed to be closed under very particular circumstances, such as presentation of classified evidence. And in these limited instances, it is only these portions of the trial that are closed. Therefore, posting the location, dates and times of pending courts-martial would allow local citizenry to attend courts-martial in their areas and permit the press to accurately and adequately cover military trials of interest. Because the military justice system is heavily decentralized, the government has resisted initiating the implementation of such a service. However, the administration of justice would benefit greatly from this effort.

In the absence of any government action, the National Institute of Military Justice has recently undertaken a new project to create an online reporting system that will track all courts-martial convened around the world. While this is not a small effort by any measure, it is a project that is long overdue. Removing perceived secrecy from the system is a solid step toward ensuring public confidence that justice is being done.

Recent events have highlighted the need to increase civilian education and access to the courts-martial process. If our personnel are increasingly being asked to defend democracy abroad, it is only right that our public believe they are receiving the same considerations at home.

-- Kathleen A. Duignan is executive director of the National Institute of Military Justice, a nonprofit dedicated to advancing the fair administration of military justice and fostering improved public understanding of the military justice system.

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