Military Justice, Variation on a Theme
| Jurisdiction | United States,Federal |
| Publication year | 2021 |
| Citation | Vol. 66 Pg. 197 |
| Pages | 197 |
66 CBJ 197. Military Justice, Variation on a Theme
In 1969, Robert Sherill wrote a scathing indictment of the Uniform Code of Military justice (UCMJ). He entitled his book Military Justice is to justice as Military Music is to Music. (fn1) At the time, the criticism, harsh though it was, may have been deserved. Today, however, after substantial change, such criticism is without basis and is slanderous of a highly tuned criminal justice system in which the constitutional rights of an accused are adequately and fully protected. The modern court-martial is, in almost all respects, identical to a trial in a federal district court. It is perhaps more accurate to say that just as the Boston Pops Orchestra performs variations on musical themes, so too, the military justice system is a variation of a criminal justice theme, retaining most of the original melody, but embellishing it in many ways. The military judge is the conductor of this orchestra; this article will examine that role as it compares the court-martial with a civilian criminal trial.
One can easily understand the reasons for the myth that a court-martial is a "kangaroo court." After all, the court-martial has received unfavorable treatment in the popular media and from Hollywood for years. To the uninitiated member of the general public then, the court-martial has always appeared to be a creation of sadistic, unyielding martinets whose sole purpose is to maintain ironclad discipline while needlessly inflicting pain and suffering. Consider the scenes from Herman Wouk's novel The Caine Mutiny in which the officers of the wardroom of the fictional World War II destroyer USS Caine faced a trial by court-martial for attempting to relieve the command of the mentally ill Captain Queeg during a Pacific typhoon in which the ship was in imminent danger of foundering. Consider also the Academy Award winning movie, Breaker Morant, in which the noble Australian soldier Morant, despite some ambiguity of his guilt, was tried at court-martial for the murder of prisoners in the Boer War, convicted, and ultimately put to death by firing
squad. A recent episode of the hit television show L.A. Law featured civilian lawyer Anne Kelsey representing a young soldier at a court-martial because the soldier feared that his military attorney was under the control of the general and would do an inadequate job of representing him. Even that noted fictional English barrister, Horace Rumpole, tried a British Army court-martial in Germany and saved an innocent soldier from being railroaded by his dishonest officers.
While some of this criticism was indeed accurate back in 1969, there has been a significant trend towards the civilianization of military justice over the past twenty two years. Two Supreme Court cases stand out as bookends for this period of radical and important advances in the evolution of our modern military justice system. The first case, O'Callahan v. Parker, (fn2) severely restricted the ability of the military to try cases at cour-martial. The second, Solorio v. United States, (fn3) partially in recognition of the changes to military justice, restored that ability. During the eighteen years between these two cases, the court-martial (fn4) developed from being primarily a tool of the military commander for maintaining good order and discipline within the armed forces into a truly modern (in most respects) criminal forum that fully implements and protects those important rights guaranteed American citizens under our Bill of Rights. This evolutionary process was driven, in large measure, by the efforts of the U. S. Court of Military Appeals (fn5) that sought to expand the constitutional protections of service members at trial by court-martial, necessary legislative changes brought about by congressional action, and the dedicated attorneys of the five armed services themselves by seeing to it that our sons and daughters serving their country had the full panoply of constitutional rights afforded them.
It was July 20th, 1956. United States Army sergeant James O'Callahan was fortunate enough to be stationed at Fort Shafter on the island of Oahu in what was then the Territory of Hawaii. That night, while on authorized liberty, after a few beers with a friend, he broke into the room of a young woman, assaulted, and attempted to rape her. Although initially arrested by the city and county of Honolulu police department, once it was determined that he was a member of the armed forces he was turned over to military control where he was eventually subjected to a trial by general court-martial, convicted on all counts and sentenced, inter alia, to ten years imprisonment. Ultimately, his case reached the United States Supreme Court which granted certiorari to consider the following question:
Mr. justice Douglas, writing for the 6-3 majority, emphatically said no! The decision, overruling years of precedent and tradition, held that in order for a "crime to be under military jurisdiction [it] must be service connected, lest, cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger,' as used in the Fifth Amendment, be expanded to deprive every member of the armed services of the benefits on an indictment by a grand jury and a trial by a jury of his peers. (fn7) In dicta, Mr. justice Douglas eloquently chronicled the many faults of the military justice system as it then existed. Chief among those complaints was the lack of grand jury indictment and the requirement for a trial by a jury of his peers.
The court-martial that convicted Sergeant O'Callahan in 1956 was primitive. It bore about as much resemblance to today's court-martial as the dinosaur does to its distant descendant, the modern day bird family. Even before O'Callahan, however, the Supreme Court had criticized courts-martial as being inadequate adjudicators of the guilt or innocence of people accused of crime. "Unlike courts, it is the primary business of armies and navies to fight wars should the occasion arise. But trial of soldiers to maintain discipline is merely incidental to an army's primary fighting function." (fn8) As proof of the accuracy of that statement, in 1956, for example, there was no legal requirement that the defense counsel in a court-martial be an attorney, although many times they were. There was no military judge assigned to hear the case, although there was a law officer. The lay members of the court-martial, by majority vote, could even overrule the law officer (fn9) assigned to the case on rulings of law. Indeed, it was but a single person, the convening authority, (fn10) who appointed the trial counsel, (fn11) the members of the court, (fn12) the defense counsel, and the law officer. No doubt it was these shortcomings that led Mr. justice Douglas to state that, even as late as 1969, "courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law. A civilian trial, in other words, is held in an atmosphere conducive to the protection of individual rights, while a military trial is marked by the age-old manifest destiny of retributive justice." (fn13)
Interestingly, the decision in O'Callahan, argued on January 23rd, 1969, was announced on June 2nd, 1969, less than two months before the effective date of the Military justice Act of 1968. (fn14) This Act provided the catalyst for most, if not all, of the
significant changes in military justice that followed for it abolished the position of law officer and created in its place the office of military judge. Although Sergeant O'Callahan's trial took place in 1956 in the infancy of the UCMJ, by the time his case reached the Supreme Court in 1969, Congress had already taken the action that would undermine the...
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