Criminal Justice Section
Criminal Justice Magazine
Volume 16, Issue 3
A historical look at military justice
By Robinson O. Everett
Of the more than 15 million Americans who served in the United States Armed Forces during World War II, only a small portion realized that they were subject to ancient—some might say obsolete—military penal codes. Through the middle of the twentieth century, America’s army served under the Articles of War—a military code that had been borrowed from the British when the War for Independence began, and despite some controversy after World War I, had remained largely unchanged since the 1700s. Sailors and marines served under the Articles for the Government of the Navy, which also had an English pre-Revolutionary origin; and the Coast Guard used its own Disciplinary Laws in peacetime. The authority for all of these statutes is Article I, section 8, clause 14 of the U.S. Constitution, empowering Congress to "make Rules for the Government and Regulation of the land and naval forces"—a phrase that has been construed to include members of the U.S. Air Force as well.
Evolution of the Uniform Code of Military Justice
Many veterans had unpleasant recollections of military justice, especially in instances of what was perceived as undue influence by command personnel on courts-martial. But it was the great number of returning World War II veterans, including those who had become lawyers or members of Congress, who gave voice to the cry for change. In 1948, with backing from groups such as the American Bar Association and the American Legion, Congress passed the Elston Act, 62 Stat. 627, that amended the Articles of War in several ways. For example, an enlisted individual accused of wrongdoing could now require that other enlisted personnel be among the members of his or her court-martial. But the Elston Act went only so far. With all the armed services now combined under the U.S. Department of Defense, it made sense to have a single, modernized code for all service members.
In 1948 Secretary of Defense James Forrestal created a committee to draft just such a code. Professor Edmund M. Morgan (my professor of evidence at Harvard Law School) chaired the committee. Although it had taken the military more than a century to update its rules, when the work of the committee was finally completed, the new code contained many forward-thinking features that would foreshadow what ordinary citizens would come to expect under civilian law.
By 1951, the Uniform Code of Military Justice applied "in all places," see Article 5, and to members of all the armed forces. Although it prohibited some conduct unique to the military, such as desertion and disobedience of orders, as well as conduct that was punishable under most civilian criminal codes, it also offered protections unique to its time. For example, under Article 31(b), it stated that a service member accused or suspected of a crime could not be interrogated or asked for a statement without first being informed of the nature of the accusation and advised "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." Unknown in civilian criminal law, this article of the military code would later be cited as a basis by the U.S. Supreme Court in its landmark 1966 decision Miranda v. Arizona, 384 U.S. 436, which established a warning requirement applicable to "custodial interrogation" for all citizens.
Another safeguard under the Uniform Code establishes that charges may not be referred to a general court-martial for trial unless a pretrial investigation has been conducted, at which the accused is present and may have counsel if he or she so requests. Unlike its civilian counterpart—the grand jury—under the Uniform Code the accused is given an opportunity to present evidence and to cross-examine government witnesses.
Regardless of military rank or financial means, an accused service member is provided military defense counsel. Defense counsel are made available from the time of the pretrial investigation through final appeal; however, the appellate defense counsel are located in Washington, D.C., and are different from the defense counsel at trial. The accused may choose civilian counsel—either together with or in lieu of military counsel—though the government does not compensate civilian counsel. At the initial stage of appellate review, the board of review, which the Code established for each armed service, is directed to consider both the sufficiency of the evidence and its weight, and to disapprove any portion of the sentence adjudged by the court-martial that the board considers inappropriate.
The president of the United States is authorized by the Code to prescribe "modes of proof" for court-martial. ( See Article 36.) Furthermore, Congress directed that the regulations issued by the president to this end should "apply the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts, but which shall not be contrary to or inconsistent with this Code." This language suggests legislative intent to "civilianize " military justice to some extent. The 1951 Manual for Courts-Martial contained a chapter on rules of evidence that were quite advanced for that time. Today, for the most part, the Military Rules of Evidence follow the Federal Rules of Evidence, which did not exist until long after the Code was enacted.
In accord with the Articles of War, the Uniform Code contains a prohibition of "conduct unbecoming an officer and gentleman," Article 133, and a "general article" authorizing punishment of "all disorders and neglects to the prejudice of good order and discipline in the armed forces," all service-discrediting conduct, and "crimes and offenses not capital." The last phrase was apparently designed to incorporate by reference federal criminal statutes. Among these statutes is the Assimilative Crimes Act, 18 U.S.C. § 13, which under some circumstances will incorporate state law; and so in some cases courts-martial try service members for violation of state criminal codes. The Code authorized the death penalty for some offenses unique to the armed services, such as wartime desertion or misbehavior before the enemy, and for other offenses, such as murder and rape, that are found in many penal codes.
For the most part, the punitive articles of the Code do not prescribe maximum or minimum sentences and—except where death is authorized—they provide only that an accused "shall be punished as a court-martial may direct." However, the Code directs that punishment for an offense "shall not exceed such limits as the President may prescribe for that offense"; and the Manual for Courts-Martial issued by the president contains a table of maximum punishments, which can be modified from time to time as the president chooses.
Until the Uniform Code was enacted, judicial review of courts-martial was complicated and rare; it was undertaken by collateral attack in the form of a writ of habeas corpus or a suit for back pay. The Code created a new civilian court—the Court of Military Appeals—from which an accused may obtain mandatory review of a death sentence or discretionary review if the sentence adjudged includes a punitive discharge or confinement for a year or more. No filing fee is due to the court from the accused; and if a petition for review is filed, the court has jurisdiction whether or not a brief or assignment of error is filed. The government also has rights of appeal to the court. The court was established in the exercise of the powers granted Congress by Article I of the Constitution; and, as with other Article I courts, such as the Tax Court and the Court of Veterans Appeals, the judges’ terms are for a fixed number of years rather than for life. In an effort to avoid partisanship on the court, Congress provided in the Code that no more than two of its three judges (now three out of five judges) may be appointed from the same political party.
As I quickly discovered after going on active duty in 1951, commanders exercise great power in the military justice system. Under the Uniform Code they serve as convening authorities, who appoint the members of a court-martial and who determine whether charges against an accused shall be dismissed or shall be referred for trial by a general, special, or summary court-martial. Unlike a grand jury, the convening authority may refer charges for trial even if the officer who conducts the pretrial investigation recommends to the contrary. After trial, the convening authority decides whether to affirm findings of guilt and how much of the sentence adjudged by the court-martial shall be approved. Obviously, there is great potential for a commander to abuse his or her power as convening authority, and, over the years, that has been the most frequent criticism of military justice. With this in mind, the Code specifically prohibits a convening authority from unlawfully influencing actions of a court-martial. ( See Article 37.)
The early years under the Code
During my early years of contact with military justice it was the subject of several decisions by the Supreme Court. In Burns v. Wilson, 346 U.S. 137 (1953), the Court had considered a court-martial conviction for murder and rape committed by several airmen stationed on Guam. The trial had taken place under the Articles of War and a death sentence had been imposed. Concluding that military authorities had given full and fair consideration to the claims of the accused, the Court denied relief. This deference by the Court to the military was repeated some years later when the Court declined to consider a collateral attack on a court-martial conviction until direct appellate review had been completed pursuant to the Uniform Code. (See Noyd v. Bond, 395 U.S. 683 (1969).)
In Toth v. Quarles, 350 U.S. 11 (1956), the Court considered the validity of Article 3(a) of the Uniform Code in which court-martial jurisdiction was retained to try former service members for serious crimes committed while they had been on active duty overseas. A former U.S. Air Force sergeant, charged with participating in the killing of a North Korean prisoner, successfully resisted trial by court-martial when the Supreme Court concluded that the power granted Congress by the Constitution to "make Rules for the Government and Regulation of the land and naval forces" extended only to persons who were members of the armed services both at the time of the crime and of the intended trial.
In 1957 another jurisdictional gap was revealed by Reid v. Covert, 354 U.S. 1, when the Supreme Court—after granting a rehearing as to its initial decision that military jurisdiction had existed—held that a dependent wife who accompanied her service member husband overseas could not be tried by court-martial for his murder, even though Article 2 of the Uniform Code authorized such trials. Three years later, the Supreme Court extended this principle to all civilian dependents and employees accompanying the armed forces overseas in peacetime. The rationale was that such persons were not members of "the land and naval forces" within the meaning of Art. I, § 8, Cl. 14. The Court was obviously concerned that the civilians would not enjoy in a court-martial the rights, such as trial by jury, that they would possess if prosecuted in a federal district court.
Created in 1951 by a new criminal code, the Court of Military Appeals was "freer than most" courts to choose among precedents. The court’s creation preceded by only a few years major changes in civilian criminal procedure resulting from the "Warren Revolution." The inevitable question was to what extent did the Supreme Court’s decisions of that period apply to military justice? Some new issues in criminal law were being raised, and the American Law Institute’s drafting of the Model Penal Code was under way.
Some of the Uniform Code’s provisions apply only in time of "war" and issues arose as to whether the Korean War—or, 15 years later, the Viet Nam War—fell within the language of those provisions. When I was released from active duty and joined the court’s staff in 1953, I quickly perceived that the three judges faced an exciting challenge in interpreting and applying the Uniform Code.
The original members of the court, who were appointed by President Truman for staggered terms of 15, 10, and five years, were well qualified to meet that challenge. Chief Judge Robert Quinn had served as a Navy captain during World War II, had been governor and lieutenant governor of Rhode Island, and served as a trial judge in that state. Judge George Latimer had served as an army colonel during World War II and later became a Utah Supreme Court justice. Judge Paul Brosman, Tulane Law School dean, was a colonel in the U.S. Air Force Reserve and had been called to active duty during the Korean Conflict. Unfortunately, he died shortly before the end of his five-year term.
During my time on the court there were several claims of undue command influence that posed the question of how far a commander may go in expressing his or her concerns without violating the Code. Also, I recall a case where the accused, who had made some damaging admissions to an undercover agent, claimed the admissions should be excluded as evidence under Article 31 of the Code. He argued that the undercover agent, knowing he was a suspect, had given him no warning that any statement made could later be used against him in court. Fortunately, the court rejected a literal reading of Article 31(b) and looked at its purpose—to prevent coercion of a suspect. Under that approach, the defendant’s statement was clearly admissible.
Among the court’s most challenging cases were those that concerned mental responsibility. The United States Court of Appeals for the District of Columbia had handed down a controversial decision that allowed an insanity defense for any conduct that was the "product" of a mental disease. Ultimately, the Court of Military Appeals rejected this approach in favor of one that corresponded to that of the Model Penal Code and focused on the ability to distinguish right from wrong and adhere to what’s right. Ironically, the court’s two leading cases on insanity involved dependent wives who had accompanied their husbands overseas and then murdered them. In those cases, the Supreme Court ultimately ruled that courts-martial had no jurisdiction to try the accused.
In reversing some convictions because of error, the Court of Military Appeals occasionally spoke of "general prejudice." By this, it meant an error that might not have affected the outcome in the specific case, but that damaged confidence in the military justice system. Of course, the court had a special interest in reversing any case that seemed to suggest command influence. It appears that the court believed that Congress had intended for it to perform a supervisory role with respect to military justice, and it was ingenious in creating remedies to correct perceived abuses in military justice. For example, when a petition for review was filed by an accused, the court through its central legal staff would review the trial record for possible error, even if no error had been assigned by the accused or by appellate defense counsel—a practice that still continues to this day.
The court concluded that service members were entitled to the same constitutional rights as civilians, except where the Constitution expressly or implicitly excluded them from having those rights. However, these rights had to be viewed in context. For example, what was a reasonable search under the conditions of the military society might be quite different from what constituted a reasonable search in the civilian community. Likewise, the First Amendment did not immunize service members against punishment for uttering comments that would be perfectly permissible in the civilian community—so a service member could be prosecuted for disrespectful statements to his or her commanding officer, and, under Article 88 of the Code could even be prosecuted for language contemptuous of the president—the commander in chief.
During its early days, the court dealt extensively with combat offenses occurring in Korea. After the war ended it considered cases concerning service members who had been taken prisoner and then had engaged in inappropriate conduct. Years later, similar issues confronted the court in connection with the Viet Nam War. Occasionally, the court has considered issues concerning legality of a military order or regulation. Has the service member been ordered to do something that would be illegal—perhaps because it violates the law of war? Must the accused comply with an order to furnish a urine specimen or submit to catheterization for drug testing? In a very recent case, a soldier unsuccessfully requested that the court rule an order was illegal because the military operation to which it pertained violated international law and the U.S. Constitution.
Unlike civilian courts, courts-martial impose a single, unitary sentence on all charges, rather than a separate sentence on each count. Frequently the court faced the issue of whether an error affected some but not all of the charges on which an accused had been convicted, and, if so, how the sentence should be modified.
In the 1960s, the U.S. Army made a very important administrative change. It allowed a defendant to enter into a written pretrial agreement in which, in return for the accused’s guilty plea, the convening authority would disapprove any portion of the defendant’s sentence that exceeded the agreed amount. The accused remained free to "beat the deal" by seeking from the court-martial a sentence below the maximum set by the pretrial agreement. The U.S. Navy soon followed suit, but the U.S. Air Force and Coast Guard did not utilize pretrial agreements until many years later. To fully appreciate the importance of the army’s authorization of open, "above board" plea bargaining, one must recall that this began a decade before the decision in Santobello v. New York, 404 U.S. 257 (1971), when the Supreme Court not only allowed plea bargaining to "come out of the closet," but also praised its contribution to the criminal justice system.
The U.S. Air Force did, however, initiate some other important changes. One was to designate some of its attorneys as area defense counsel who, on a full-time basis, would represent accused persons in courts-martial and would have their own office and staff separate from those of other lawyers on their base. The army quickly followed the air force’s example, but the navy did not implement a separate trial defense service. However, the U.S. Navy was a forerunner in developing and using the stenomask technique for court reporting of trials by navy courts-martial that took place around the world.
The Military Justice Act of 1968
In 1962, Senator Sam Ervin, Jr., who chaired the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, decided—partly at my suggestion—to consider the constitutional rights of military personnel with respect to military justice. Senator Ervin, a highly decorated veteran of World War I and former North Carolina Supreme Court justice, proceeded on his announced premise that without discipline there is no justice, and without justice there is no discipline. Since he was a ranking member of the Senate Armed Services Committee and a good friend of its chairman, he was fortunate and received no complaint that he was invading that committee’s jurisdiction.
In 1962 and 1966, Senator Ervin’s subcommittee conducted extensive hearings and prepared reports. Ervin introduced 18 bills designed to improve the fairness of military justice and of military administrative personnel actions. A major result of his efforts was enactment of the Military Justice Act of 1968, which further judicialized and civilianized military justice. Under the Act, the law officer of general courts-martial became a military judge whose primary duty was judicial. Military judges not only were required for general courts-martial, but also were authorized for special courts-martial. Moreover, an accused was allowed to waive trial by court-martial members and be tried and sentenced by a military judge. At the appellate level, boards of review became courts of military review with judges, rather than members. Subject to a limited exception, the right of an accused to be defended without cost by a military lawyer was extended from general courts-martial to special courts-martial. (Article 27(c).)
In 1969, the Supreme Court took its longest step towards limiting court-martial jurisdiction—and in doing so disparaged military justice. Overturning the conviction of a soldier by a court-martial in Hawaii, the opinion of the Court written by Justice Douglas referred to "so-called military justice" in holding that courts-martial may only try a service member for crimes that are "service-connected." ( O’Callahan v. Parker, 395 U.S. 258, 266 (1969).) Obviously, its low opinion of military justice motivated the Court to impose an unprecedented limitation on court-martial jurisdiction.
Subsequently, O’Callahan was limited in two ways. First, it was not applied with respect to American service members whose misconduct occurred outside the United States. Second, it was not applied retroactively to crimes that had preceded the O’Callahan decision. Furthermore, the Court sought to enunciate factors important in deciding whether crimes were service-connected. Nonetheless, litigation involving "service-connection" was extensive and frequent; and the interpretations of O’Callahan by the Court of Military Appeals were somewhat erratic.
In the 1970s, the Supreme Court moved in a different direction. In Parker v. Levy, 417 U.S. 733 (1974), it upheld the court-martial conviction of an army doctor who was counseling some of his military patients that they should not serve in Viet Nam. Dr. Levy’s conduct was held to have violated Article 133 of the Uniform Code because it was unbecoming an officer, and Article 134 because it prejudiced good order and discipline and was service-discrediting. The vagueness of these statutes, which probably would not have been tolerated in civil court prosecutions, was considered permissible in military justice.
In Middendorf v. Henry, 425 U.S. 25 (1976), the Supreme Court held that even though the accused service member had requested and been denied defense counsel, his conviction by a summary court-martial and his 30-day confinement were valid. Summary courts-martial, which consist of a single officer, were distinguished from a civilian criminal court, where providing counsel for an accused who so requests is a prerequisite for imposing a sentence of even a day’s confinement. ( See Argersinger v. Hamlin, 407 U.S. 25 (1972).)
The Court of Military Appeals
When I became chief judge of the Court of Military Appeals in April 1980, that court and the military justice system as a whole were undergoing a massive caseload increase. A major cause was the explosion in use of drugs by service members and the efforts by the armed forces to suppress that use. Sometimes the issue concerned compulsory urinalysis and the extent to which under the Fourth Amendment a service member may refuse to provide a urine sample for testing. Often the issue was whether search of a barracks in which drugs were located had been for health and welfare purposes or for a criminal investigation.
In the late 1970s friction had developed between the court and the U.S. Department of Defense (DOD), whose general counsel had proposed abolition of the court and transfer of its jurisdiction to an Article III Circuit Court of Appeals. Fortunately, that conflict was resolved and the proposal for abolition of the court died silently. On the other hand, the conflict prompted suggestions that the court should not in the future be dependent on the DOD for "administrative" purposes and that it should become an Article III court whose judges would be immunized against pressure from the DOD.
In 1981, an espionage case posed an interesting issue. ( Cooke v. Orser, 12 M.J. 335 (1982).) Cooke, a U.S. Air Force lieutenant assigned to a missile silo, was arrested soon after he had delivered some top secret targeting plans to the Soviet Embassy in Washington, D.C. In seeking to obtain information from him, investigators assured Cooke that he would not be prosecuted if he provided them highly sensitive information about his Soviet contacts. He furnished them the information, the accuracy of which was confirmed by several polygraph examinations. The air force then filed charges against him. Cooke sought a writ from the court of military appeals to bar prosecution because of the promises he had received. Represented by well-known lawyer F. Lee Bailey, Cooke persuaded the court that the informal promises made during the investigation precluded the air force from prosecuting him. (Incidentally, Bailey’s legal career began when, as a marine officer, he defended special courts-martial; then later as a civilian lawyer he successfully represented an officer accused of involvement in the My Lai massacre. Recently he served a term as a public member of a committee established by the Uniform Code to monitor developments in military justice. ( See Article 146.).)
In 1983, the court examined the procedure prescribed by the Manual for Courts-Martial in imposing capital punishment. Ruling that Furman v. Georgia, 408 U.S. 238 (1972), applied to trials by court-martial, the court held that the existing procedure was inadequate and did not furnish sufficient guidance for the court-martial members in exercising their discretion. ( United States v. Matthews, 16 M.J. 354 (1983).) A few months later President Ronald Reagan promulgated the 1984 version of the Manual for Courts-Martial with a detailed procedure for adjudging a death sentence. Subsequently, the Court of Military Appeals upheld the new procedure against contentions that Congress had unconstitutionally delegated to the president the choice of procedure to be used and the factors to be considered by courts-martial in imposing death sentences. ( United States v. Curtis, 32 M.J. 252, cert. denied, 509 U.S. 952 (1991).) The Supreme Court reached a similar conclusion several years later in United States v. Loving, 517 U.S. 748 (1996), which contains an excellent history of capital punishment in the armed services.
A group of cases involving command influence reached the Court of Military Appeals from Europe and involved some comments made by a major general to some of his subordinates in an army division. In its review, the court emphasized that "Command influence is the mortal enemy of military justice." ( United States v. Thomas, 22 M.J. 388, 393 (1986).)
The court also sought to ensure the fairness of trials by court-martial by applying the principle stated in Batson v. Kentucky, 476 U.S. 79 (1986), and related cases that a peremptory challenge may not be exercised on the basis of race or gender.
In one respect, the most significant case for the military justice system during the 1980s was Navy-Marine Corps Court of Military Review v. Carlucci, 26 M.J. 328 (1988). The judges of the Court of Military Review had been ordered by the judge advocate general of the U.S. Navy to appear for questioning by the inspector general of the Department of Defense about anonymous accusations of ex parte influence on them in their rendering of that court’s en banc decision in a highly publicized case that involved several deaths resulting from alleged malpractice by a naval surgeon. In reliance on the All Writs Act, 28 U.S.C. 1651(a), the Court of Military Appeals enjoined Secretary of Defense Carlucci and his subordinates from proceeding further with their inquiry and appointed Judge Cox, one of its three judges, to act as the court’s special master in determining whether any basis existed for the accusations against the members of the lower court. In this way, the court sought to maintain the independence and integrity of the military justice system and its military judges. Having investigated, Judge Cox found no improper influence on the court below.
After a brief congressional hearing, the Uniform Code was amended in 1983 to allow direct review by the Supreme Court of decisions by the Court of Military Appeals. However, this review is authorized only in cases in which the Court of Military Appeals has itself granted review. Thus, if an accused’s petition for review is denied by the Court of Military Appeals in the exercise of its discretion, the case will not be eligible for review by the Supreme Court. On the other hand, a summary affirmance in the Court of Military Appeals is eligible for review.
In 1987, the Supreme Court, exercising its new power to review directly the decisions of the Court of Military Appeals, considered whether the off-duty misconduct of a member of the Coast Guard had been within the jurisdiction of the court-martial that convicted him of violating the Uniform Code. The opinion of the Court of Military Appeals, which I authored, held that the offenses were service-connected in light of various factors previously explained by the Supreme Court. That Court, in affirming, chose to overrule O’Callahan and held that military status of itself is an adequate basis for court-martial jurisdiction.
In the late 1980s the Court of Military Appeals concluded that it would be important to provide the American public a better understanding of—and hopefully a greater confidence in—military justice. To this end, the court instituted its Project Outreach and heard arguments of appeals at various law schools, such as Virginia, Wake Forest, William and Mary, and Duke, and at the service academies. Also, because the court is not an Article III court and not subject to the severe restrictions imposed by the Federal Judicial Conference on televised coverage of federal court proceedings, the Court of Military Appeals decided to allow televising of some of its arguments so viewers would have a better idea of the issues facing the court. In addition, the court persuaded a distinguished legal historian, Professor Jonathan Lurie, to undertake a written history of American military justice and of the court’s origins and development. The result was two books, Arming Military Justice and Pursuing Military Justice, which trace American military justice from 1776 to 1980.
In order to evaluate and improve its performance, the court also created a Court Committee whose distinguished members provided the court with a candid evaluation of the strengths and weaknesses in its performance.
In 1990, Congress authorized some important changes in the Court of Military Appeals. The number of its judges was increased from three to five, and a procedure was created in which an Article III judge could be designated by the Supreme Court’s Chief Justice to serve on the court in the event of a judge’s death, illness, or recusal. Judge David Sentelle, of the United States Court of Appeals for the District of Columbia Circuit, was the first Article III judge designated to serve. A senior judge of the court also may hear cases when needed. (After retiring on September 30, 1990, I served actively as senior judge for the next 15 months while vacancies on the court were filled.)
In 1994, Congress decided that the Courts of Military Review for the U.S. Army, Navy-Marine Corps, Air Force, and Coast Guard should be renamed Courts of Criminal Appeals. Likewise, the Court of Military Appeals became the Court of Appeals for the Armed Forces—a change intended to provide a better understanding of the court’s mission and to make clear that its judges are civilians.
Recent Supreme Court decisions
Since 1987, when Solorio was decided, several other court-martial cases have reached the Supreme Court on direct appeal. In Weiss v. U.S., 510 U.S. 163 (1994), the Court ruled that appointment of a military officer to be a military judge was not an appointment that fell under the Appointments Clause of Article II of the Constitution and that could only be made by the president or the secretary of a department. However, a civilian chosen to serve as a judge on the Coast Guard Court of Criminal Appeals did require presidential or secretarial appointment. ( Ryder v. United States, 515 U.S. 177 (1995).)
In Davis v. U.S., 512 U.S. 452 (1996) , the Supreme Court dealt with the custodial interrogation of a service member. The issue was the same as that which had arisen in many civilian courts and concerned the responsibility of an interrogator when the suspect has made a comment that might be construed as a request for counsel. Thus, the case illustrated that, in some respects, military justice is increasingly in the mainstream of American criminal justice.
In Scheffer v. U.S., 523 U.S. 303 (1998), the Supreme Court reviewed a decision by the Court of Appeals for the Armed Forces that, by divided vote, had held invalid an absolute prohibition in the Manual for Courts-Martial against the receipt of polygraph evidence in a trial. In this case the evidence was being offered by the defense to corroborate the accused’s testimony at trial; and the Court of Appeals for the Armed Forces concluded that the bar against this evidence violated the Constitution. However, the Supreme Court held that the prohibition was within the president’s power in promulgating the Manual and that the military judge had properly excluded the evidence. Interestingly, Justice Stevens dissented and four other Justices, in a separate concurring opinion, seemed to express the view that it would have been desirable had the president not imposed the prohibition on polygraph evidence and instead had left its admissibility to be dealt with in the same way that such evidence would be handled in a federal district court.
Finally, in Clinton v. Goldsmith, 526 U.S. 529 (1999), the Supreme Court recently held that the Court of Appeals for the Armed Forces had exceeded its authority under the All Writs Act, 28 U.S.C. § 1651(a), or otherwise in ruling that a statute requiring officers convicted by court-martial be dropped from the military rolls could not be applied retroactively. In the view of the Supreme Court this was an administrative matter outside of the court’s jurisdiction. This decision has raised questions about the broad view the court of appeals has taken of its supervisory role in the military justice system—a view that it has held for many years.
Needed legislation enacted
In the 1960s, Senator Ervin had taken note of the jurisdictional gap created by the Supreme Court’s decisions in Toth v. Quarles and Reid v. Covert. As a remedy he introduced bills to empower federal district courts to try former service members for serious violations of the Uniform Code they had committed while on active duty and to try military dependents and employees for serious violations of the Code they had committed while accompanying the armed forces overseas. Finally, legislation to this effect was enacted by Congress and signed into law by President Bill Clinton on November 22, 2000.
Looking to the future
Changes in military justice have not come rapidly—perhaps because Congress has not given great attention to the subject. Indeed, not since the 1960s hearings has there been extensive congressional attention to the subject; and several of the significant statutory changes made in recent years were accomplished by "technical amendments" attached to appropriations or other legislation.
Some have suggested that the year 2001—the 50th anniversary of the Uniform Code’s effective date—would be a suitable time for Congress to give close scrutiny to military justice. To that end, the National Institute for Military Justice, a nonprofit corporation, established a Commission on Military Justice chaired by one of my successors, former Chief Judge Walter Cox of the Court of Appeals for the Armed Forces. It has produced a report that proposes significant changes in the role of the convening authority, the selection of court-martial members, tenure of military judges, the number of court-martial members for capital cases, and the preciseness of definitions of sexual offenses. The report also directed attention to other issues. In addition, I have proposed that service members be provided the option to be sentenced by the military judge even when trial of guilt has been before the court-martial members. One objection to my suggestion, no doubt, is the desire of some individuals to continue the pressure on an accused to waive trial by members in order to be assured that sentencing will be done by a military judge. Other objections may be grounded in the belief that sentencing should be transferred to military judges in all cases and that implementing my proposal would delay enactment of the more sweeping revision.
The lack of precision in the Code’s definition of sexual offenses has been criticized for years. For example, the broad language of Article 125 makes sodomy an offense—whether or not it is consensual and whether engaged in by homosexuals or heterosexuals. Moreover, unlike the ALI’s Model Penal Code and other more recent civilian codes, many sexual offenses punishable by court-martial are not specifically defined and are prosecuted as conduct which is service-discrediting or, in the case of officers, unbecoming. To some extent the vagueness of the Uniform Code’s provisions is mitigated by judicial precedents and by detailed discussion of sex offenses in the Manual for Courts-Martial. Therefore, Congress may decide not to change the status quo and, instead, to rely on the sound judgment of convening authorities and prosecutors as to what conduct should be prevented.
As has already been noted, the Supreme Court’s decision in Clinton v. Goldsmith has raised some question as to the scope of the authority of the Court of Appeals for the Armed Forces. For example, under the Goldsmith case, there might be an issue as to the court’s authority to take the action it took in the Carlucci case. I hope that Congress will clarify the situation and, in doing so, will make even clearer its endorsement of the supervisory role that the Court of Appeals for the Armed Forces has long performed to the military justice system.
Perhaps the greatest need for congressional study concerns military administrative action used in lieu of criminal proceedings. As Senator Ervin’s hearings disclosed more than three decades ago, a service member’s misconduct may be the basis either for a trial by court-martial or for administrative action to separate the service member from the armed services or to reduce him or her in grade. Indeed, a service member may be proceeded against both in a court-martial and before an administrative board. An acquittal by court-martial does not preclude adverse administrative action with respect to the same conduct, and in the administrative action the government is not required to prove its case beyond a reasonable doubt. Moreover, an administrative discharge issued by a board may have as adverse an effect on the accused as would a punitive bad conduct discharge adjudged by a special court-martial. Because of the potential for abuse of the administrative process and the serious consequences to the service member, I am convinced that Congress should authorize some type of centralized judicial review of military administrative discharges and other military administrative action to help prevent abuses.
Military justice is far more sophisticated than many would recognize. Indeed, when the Uniform Code of Military Justice took effect in 1951, the system it created was in many respects a pioneer. Even today military justice offers new safeguards not available to defendants in other systems of criminal justice. Despite the critical attention often given to courts-martial by the media, it is uncertain that major overhauls in American military justice are needed. Nonetheless, after so many years without significant congressional attention, the time is ripe for Congress to take a close look at the system. Moreover, Congress now has available the experience of several other nations that have recently updated their military justice systems and will be better prepared to decide how much revision the Uniform Code needs after completing 50 fruitful years.
Judge Robinson O. Everett is on the faculty of Duke University Law School and is a counselor to the ABA’s Standing Committee on National Security. Judge Everett served as a chief judge of the Court of Military Appeals from 1980–90 and a senior chief judge from 1990 to the present. He is a retired colonel in the U.S. Air Force where he served as a judge advocate on active duty from 1951–53 and reserved duty from 1953–78. He was a commissioner with the U.S. Court of Military Justice from 1953–55 and was a member and former chair of the ABA’s Standing Committee on Military Law from 1973–79. He is the author of the book Military Justice in the Armed Forces of the United States . From 1961–64 he served as counsel for the Subcommittee on Constitutional Rights of the Senate judiciary Committee.