Five questions about the military justice system.

• Author: Gierke, H.F.

1. INTRODUCTION

   Between my service on the North Dakota Supreme Court and the Court of Appeals for the Armed Forces, I have now been an appellate judge for more than two decades. One thing appellate judges certainly know how to do is ask questions. I hope to stimulate thought about the military justice system by posing five fundamental questions:

   First, is it time for a comprehensive reevaluation of the military justice system?

   Second, how can technology improve the military justice system?

   Third, should the structure of the military trial judiciary be changed?

   Fourth, how can the services best develop judge advocates to become military justice professionals?

   Fifth, how will international concerns affect our military justice system?

2. QUESTION ONE: SYSTEMIC REEXAMINATION

   In a speech that he delivered in 2000, Major General William A. Moorman, who was then the Judge Advocate General of the Air Force, addressed change in the military justice system. (1) He noted that the "central question" was whether the Uniform Code of Military Justice (U.C.M.J.) (2) needed to be changed. (3) General Moorman responded, "There can be only one answer. Of course it needs to be changed!" (4) He explained, "For 50 years, the U.C.M.J. and the Manual for Courts-Martial which implements it, have been anything but static documents. The real questions are: 'If change is inevitable, what changes should be made? Why should change occur? And, when should changes be made?'" (5) General Moorman then urged caution in adopting changes to the military justice system, emphasizing the importance of ensuring that reforms do not interfere with ensuring good order and discipline in our military forces. (6)

   Since enacting the current military justice system in 1950, (7) Congress revisited and revised the system in 1968 (8) and 1983. (9) The 1968 revisions were particularly substantial, including changing the old "law officer" position to the office of military judge, authorizing judge-alone courts-martial, and fundamentally reforming the special court-martial to require, in almost all instances, a lawyer to serve as the defense counsel and a military judge to preside. (10)

   Those of us who were judge advocates before the Military Justice Act of 1968 grew to accept the thought of soldiers being confined for six months as the result of a special court-martial with no lawyers in the courtroom. It was part of the system that we learned about at Judge Advocate General (JAG) School. Now, of course, we look back in disbelief. Are there aspects of our current system that will seem just as anachronistic when we look back at it in 2040 (if I'm lucky enough to still be analyzing the system when I am 97)?

   Congress reviewed the system again in 1983. (11) The results were revisions that "streamline[d]" the post-trial review process (12) and extended the Supreme Court's certiorari jurisdiction to include decisions of what was then called the United States Court of Military Appeals. (13)

   Now that more than twenty years have passed since the last major revision of the system, is it an appropriate time to determine how it is working? The military justice system is currently undergoing a period of great strain and scrutiny. This has affected both the established court-martial system and military commissions (14)--an entirely distinct process from the court-martial system with which our Court deals. Article 21 of the U.C.M.J. (15) recognizes military commissions' jurisdiction to operate independently of the court-martial system. It is important for the public to appreciate the distinction between these two systems.

   Can the military justice system withstand the current enhanced public scrutiny? Of course it can. Could our system be improved? Of course it can, no human product is perfect.

   Since Congress' last substantial review of the military justice system in 1983, (16) the face of America's military has changed. One particularly important development has been the civilianization of many military functions. This includes logistic support on the battlefield, (17) and even the Navy's replacement of sailors on some ships with "civilian mariners." (18)

   Should these civilians accompanying U.S. forces be subject to court-martial jurisdiction? A 1970 decision by the Court of Military Appeals is an impediment to doing so. (19) Under Article 2(a)(10) of the U.C.M.J., "persons serving with or accompanying an armed force in the field" are subject to court-martial jurisdiction "[i]n time of war." (20) That time of war requirement is constitutionally significant, because the Supreme Court has held that civilians may not be subjected to court-martial jurisdiction in peacetime. (21)

   Raymond Averette was a civilian who supervised a motor pool on behalf of a government contractor in the Saigon area in 1968. (22) He was tried by a general court-martial for conspiring with several soldiers to steal 36,000 batteries from an Army warehouse and for carrying out that plan. (23) He was convicted and received a sentence that included a year of confinement. (24) After the Army Court of Military Review affirmed his conviction, the Court of Military Appeals reversed. (25) Over the dissent of Chief Judge Quinn, Judges Darden and Ferguson held that "for a civilian to be triable by court-martial in 'time of war,' Article 2 ... means a war formally declared by Congress." (26) That definition, however, is at odds with the definition of "time of war" for purposes of the Manual for Courts-Martial. R.C.M. 103 defines "time of war" as "a period of war declared by Congress or the factual determination by the President that the existence of hostilities warrants a finding that a 'time of war' exists." (27)

   In practice, the Averette decision exempts civilians from court-martial jurisdiction, since congressional declarations of war (28) have become a thing of the past. (29) Throughout its history, the United States has fought only five declared wars--none since Congress adopted the U.C.M.J. in 1950. (30) Should Congress change Article 2?

   When we think about reexamination of the military justice system, we must keep in mind that, every year, the system is reviewed by the Joint Services Committee, (31) which reports to the Code Committee. (32) That review serves as a sort of annual physical exam. But, every so often, we get a more comprehensive physical including blood work and an EKG. Is it time for the military justice system to receive a comprehensive examination?

   In 2001, one of my predecessors as Chief Judge of the Court of Appeals for the Armed Forces--Walter T. Cox III--led a blue-ribbon panel that examined the military justice system. (33) Among other fundamental issues, the Cox Commission examined the roles of the convening authority and the military judge, and offered proposals to shift some responsibilities from the former to the latter. (34) In our decision last term in United States v. Dowty, our court referred to the Cox Commission's recommendations to change the convening authority's role in selecting court-martial members. (35) At the September 2004 Code Committee meeting, the Army revealed that it is seriously scrutinizing the manner by which court-martial members are selected. The Army is also considering whether the U.C.M.J.'s sexual offense articles should be amended to parallel the federal sexual assault statute. Congress recently directed a similar review. (36) Perhaps a fundamental reexamination of the military justice system has already begun.

3. QUESTION TWO: USE OF TECHNOLOGY

   I am astounded by how technology has changed the battlefield since I was a young captain presiding over special courts-martial in Vietnam. Technology has also helped us in the military justice system. For example, we use computerized legal research to quickly discover the law that applies to the cases we are litigating or deciding--and counsel even use on-line legal research services to track down witnesses. (37) Computers have also helped us more easily write motions, briefs, and opinions.

   In May 2003, the Court of Appeals for the Armed Forces launched a pilot program to allow electronic filing of motions for first...