In 1974 the Supreme Court recognized that “[j]ust as military society has been a society apart from civilian society, so military law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment.”
On the second day of the 2022 Appellate Judges Education Institute Summit, retired Brigadier General John Cooke spoke to a group of civilian and military attorneys and judges about this “jurisprudence which exists separate and apart.” General Cooke, who is now the Director of the Federal Judicial Center, drew upon his twenty-six-year career as an Army judge advocate to discuss the military justice system and to draw some comparisons to the civilian criminal justice system.
The General’s presentation began by highlighting the reasons for the military’s separate criminal justice system. He then turned to reviewing the evolution of the military justice system. And he concluded by considering the possible effects of current and future reforms upon military justice.
Tackling a threshold question to start, General Cooke articulated that the need for discipline, the operation of the law of war, and jurisdictional and logistics constraints require America’s armed forces to have a separate criminal justice system.
Primarily, the military justice system exists to uphold discipline. General Cooke highlighted that, throughout history, military effectiveness and success have depended upon mostly young people, often from vastly different backgrounds, coming together to do their jobs to exacting standards and frequently under exceedingly dangerous, uncomfortable, and stressful circumstances. Without the discipline to do one’s job well in these extreme conditions, service members would struggle to trust and depend upon one another, a critical foundation for military success. Either by imposing or, as is more the focus in modern times, instilling discipline, the military justice system thereby serves to support military effectiveness and success.
Additionally, the responsibilities and liabilities of Commanders under the law of war necessitate a separate system to ensure discipline. Unlike most civilian leaders, military commanders are responsible for, and could be held personally liable for, the conduct of their subordinates in war. Commanders, and the military writ large, thus need a mechanism to ensure subordinates comply with the orders of their commanders consistent with the law of war. The military justice system is this mechanism, having offenses for insubordination, failure to follow orders, and mutiny, among other military-specific offenses.
There are also jurisdictional and logistical reasons for a separate system. First, the audience learned, civilian courts simply lack jurisdiction to try offenses transpiring in many places where U.S. service members serve. The Uniform Code of Military Justice (UCMJ), however, applies to all active-duty service members, and many others, in all places. Second, the military needs a system to ensure justice and discipline aboard ships at sea, in the field, and in expeditionary environments. Federal courts do not try cases in war zones nor aboard naval vessels, but courts-martial can and have tried cases in both places.
Thus, General Cooke summarized, to meet its unique discipline and justice needs, the military requires a separate criminal justice system.
Having established why the military has a separate justice system, General Cooke turned to discuss the historical evolution of America’s military justice system. His overview started with the Continental Army and highlighted key reforms throughout the twentieth century. As an overall theme of this evolution, the General submitted that the military’s system has increasingly converged with its civilian criminal justice counterpart, particularly regarding procedures and defendants’ rights.
America’s modern military justice system formally began with the Continental Army. Shortly after appointment to command this Army, General George Washington quickly sought authority from the Continental Congress to create a system of military justice. This Revolutionary Era system drew heavily upon the British Articles of War which traced back to Roman times.
Mimicking the British, the Continental Army’s justice system placed virtually singular authority in the military commander to mete out discipline. The commander had authority to convene courts-martial, select jurors, and approve the sentence, all with little or no review. This configuration was premised two assumptions. First, commanders and officers of aristocratic pedigree needed a means to punish, and thereby impose discipline upon, the mostly commoner and involuntarily impressed enlisted soldiers. Second, commanders needed a responsive means to ensure their unit’s efficiency and military effectiveness. The Continental Army’s justice system evolved little after independence and became the Articles of War (governing the Army) and the Articles for the Government of the United States Navy.
The military justice system under these Articles and their nineteenth century successors was ripe for critique as to the actual justice it provided and rights it ensured for accused soldiers and sailors. First, no one with legal training, much less a lawyer, was required to participate in courts-martial convened under this system; there were no legally trained judges, prosecutors, or defense counsel. Second, the “judge advocate” appointed to oversee a court-martial usually had no legal training and would serve both to prosecute the case against the accused while also being responsible for ensuring the rights of the accused service member, with all the inherent conflicts of interest. Finally, the court-martial jurors, known as members, could overrule the presiding officer on procedural matters like the admissibility of evidence and often were pressured by the commander to reach certain results. Further, the results of courts-martial under these Articles faced virtually no review.
This system survived largely until reforms were made following the First and Second World Wars. The first minor change came during World War I. In 1917, the racially charged Houston Riot and Camp Logan Mutiny transpired. As described by General Cooke, this incident resulted in a mass court-martial where 63 black soldiers were tried en masse and thirteen of those convicted were hung with two days notice and no judicial review of their death sentences. Outcry over this incident led to the creation of an Army board to review capital sentences, the first inklings of appellate review of courts-martial.
More significant reforms occurred after World War II. Here, General Cooke highlighted how sixteen million Americans served in the military and many were involved in the two million courts-martial which transpired during the war. Many returning service members had grown to perceive the military justice system as command dominated, arbitrary, and failing to adequately protect defendants’ rights. These veterans lobbied to create a more just system, especially as the military’s size remained large to address Cold War threats.
Following groundbreaking post-war institutional national security reforms, the UCMJ was enacted in 1950. This initial UCMJ made numerous changes including ensuring that an attorney would oversee felony-level General Courts-Martial, providing a statutory right to counsel for defendants (the “accused”), and instituting a prohibition against commanders communicating with the court-martial jury (the “panel”) during the trial. The UCMJ also created military justice specific Boards of Military Review (BMRs) to hear direct appeals within each service, including automatic review of sentences with confinement over one year or a punitive discharge, and a Court of Military Appeals (CMA) with discretionary authority to hear appeals from the BMRs. General Cooke observed that while these reforms did not resolve all critiques leveled against the military justice system, the UCMJ drastically increased the fairness of the system and the rights of the accused within it.
As the twentieth century progressed, the UCMJ’s evolution continued, with notable updates following the Vietnam War and later. The Military Justice Act of 1968 provided the first major update, instituting independent military judges to preside over courts-martial, expanding rights of accused members (including to a legally qualified and government funded defense counsel) at misdemeanor level Special Courts-Martial, and expanding the review authority of each service’s BMR, now called Courts of Military Review. In the 1970s, the CMA expanded accused’s rights over numerous cases. During this period, the military also adopted the Military Rules of Evidence (MREs) based largely upon the Federal Rules of Evidence. Finally, Legislation in 1983 provided for direct review of courts-martial by the Supreme Court of the United States.
General Cooke also emphasized one significant jurisdictional issue that came full circle during this period. In 1969, the Supreme Court held in O’Callahan v. Parker, 395 U.S. 258, that some service connection was required for the military justice system to have jurisdiction to try offenses under the UCMJ. This decision severely constrained the military’s ability to punish misconduct which occurred off military bases or against civilian victims. In 1987, however, the Supreme Court in Solorio v. United States, 483 U.S. 435, overruled O’Callahan, reinstating the military’s jurisdiction over service member misconduct regardless of the existence of a “service connection.” This resolved a significant jurisdictional gap. The decision also established the modern UCMJ’s expansive jurisdiction over service members.
Reaching the 1990s, General Cooke noted that the Navy’s “Tailhook” Scandal, and its lax response to egregious sexual harassment and assault allegations, marked a turning point in perceptions of the UCMJ. Prior to Tailhook, many saw the military justice system as commander dominated, with commanders having a prosecutorial bent at the expense of protections for accused service members. Post-Tailhook, however, concerns rose that the military justice system allowed misconduct to go unpunished based upon the significant discretion of the commander whether to invoke the military justice system and prosecute offenses. Initial reforms to increase oversight and constrain commander discretion began as internal military regulations.
During the early 2000s, however, Congress applied increased scrutiny over concerns that the commanders were insufficiently addressing sexual harassment and assault within the ranks. This scrutiny led to legislative reforms to the military justice system. Throughout these reforms, however, commanders retained substantial authority over whether allegations of misconduct would be handled within the military justice system. Commanders also had significant discretion to reduce court-martial sentences post-trial.
Having provided this overview of the military justice system’s evolution, General Cooke turned to discussing the watershed reforms in the Fiscal Year 2022 National Defense Authorization Act (FY22 NDAA).
Enacted in December 2021, the FY22 NDAA imposed a bedrock change to who has authority within the military justice system. Most notably, the NDAA removes from commanders the authority to decide whether to prosecute several UCMJ offenses (known as “covered offenses,” including sexual assault offenses, murder, and other victim-centric crimes) and places that decision in newly created Special Trial Counsel. The Lead Special Trial Counsel (LSTC) in each case will be a senior uniformed military attorney for each military department who is statutorily independent of the normal military chain of command, reporting directly to each military department’s politically appointed civilian secretary. The LSTC will be assisted by specially qualified subordinate Special Trial Counsel who must be assigned to prosecutions of covered offenses. This, General Cooke observed, was a significant but consistent next step in the trend of creating even greater similarities between the civilian and military justice systems.
Having summarized the NDAA’s significant changes, General Cooke concluded with some thoughts and observations on the effects he believes the NDAA may have on the UCMJ and what the future may hold for the military justice system.
He first opined that the trend of reducing commanders’ authority and discretion under the UCMJ will likely continue, albeit possibly at a slower pace. But, to truly evaluate the effectiveness of the NDAA’s reforms and others, General Cooke advocated for a pause in the pace of change. He discussed the need for time to analyze and review the good and bad from the NDAA’s significant changes.
General Cooke expressed skepticism that discipline may suffer after the NDAA’s reforms, as authority to decide whether to prosecute many UCMJ offenses shifts from commanders to military attorneys. On this latter point, the General opined that exposure of military attorneys to military operations and integration of these attorneys on commanders’ staffs equips them with a profound appreciation for the importance of good order and discipline. Conversely, he expressed concerns that Commanders may feel less responsibility to be informed and involved in the military justice system as it becomes an increasingly isolated structure whose decisionmakers are lawyers.
With this ongoing evolution in mind, General Cooke highlighted his optimism for the future of the military justice system to play its unique role supporting discipline within America’s armed forces and thereby supporting the military’s effectiveness. The General concluded by conveying that while military law may be a “jurisprudence which exists separate and apart” from its civilian counterpart, he takes faith in the one very common thread he sees between the military and civilian systems: the actors and officers in both systems strive to do the right thing and ensure justice.
