A Hard Look at the Military Magistrate Pretrial Confinement Hearing: Gerstein and Courtney Revisited

Author:by Captain Jack E. Owen, Jr., USMC

Servieemnbers awaiting trial by court-martial m y be placed in pretrial confinement by ale7 of their commanding officers. What standamla and pmeedums are applicable to sueh confinement? The Supreme Cmrt in its IS75 Gerstein dscisia and the Cmrt ofMilitary Appeals in its 1976 Courtney decision heve given at least part of the answer

In the wake of these two decisions, the military services 8s- tabliahed programs under which military magistrates are re. qnired to hold hearings to tnquire into the necessity for pretrial confinement. Captain Owen examines the regzclations zssued by the various seruices, and discusses their pmctical implemen-tation.

Captain Owen recommends that magistmte progmnw be made unvm among all the seruices. Among other things, herecamends that use of lauyers a8 mogistmtss be mode mandatory, and that the time brhveen issuance of the confinement order and conduct of the heanng be shtened. He proposes a nau Department of Defense instructton to effect refms.

Opinions diffw widely concming the actual requirements imposed by Gerstein and Courtney, and not everyone will agree

**United States Marine Carps. Assigned LO Legal Seniees Support Ofnee, 3d FSSG, Oldnnwa. Japan, from Dee. 1979 to present. Former artillery officer, 197S76. B.S.,

1973, United States Naval Academy, Annapolis, Maryland: J.D., 1979, Haward Law Sehwl, Cambridge, Mnas. Member ofthe Bar$ ofTexaa and the United States Court of Military Appeals.

unth Captain Owen's view of these requirements. It 1s not self. evident, for example, that lawyers make bettermgzstrates than mn-lawyers zn all situations. A'eaedheless, it is hoped that this znteresling arttcle stimulates discussion of som of the tssucs raised by pretrial confinement today.


    Prior to 1975-76, pretrial confinement of servicepersons awaiting court-martial was at the virtually uncontroiled discretion of the commanding officer. In the space of less than a year, houwver, both the Supreme Court and the Court of Military Appeals handed dawn landmark decisions concerning pretrial confinement procedure. These decisions resulted in the creation af military magistrate systems in each of the armed services to supervise the pretrial confinement of servicepersons and to guard against abuse of the individual rights of service members ordered into pretrial confinement. However, there are some indications that the magistrate programs have devolved into perfunctory rubberstamps for the confinement decisions of commanding officers and now operate to institutionalize the very abuses they were established to protect against.

    It 1s the thesis of this article that military magistrate hearings are a sound and useful idea, but that several major changes in ament procedures must he accomplished before the magistrate programs will ac-tually he capable of performing the watchdog duties they u'ere designed to perform. Among the changes considered necessary are the follouing:

    With a few special exceptions, presentment before a magistrate should occur prior ta any confinement and within 24 hours of the order into confinement.

    The military magistrate should be a lawyer.

    The military magistrate systems of the ~erviee~should be uniform.

    The article concludes with a proposed "Umfom Militsv Magistrate System" regulation which provides suggested Department of Defense standards and guidelines for military pretrial confinement hearings.

    The law of military pretrial confmement is not yet so clear as to admit to finality af conclusion m any of its important aspects. Thus, the legal

    arguments presented here, while persuasive, are not and cannot be compelling.

    The crucial function of this article is to note the trends in military pretrial cominement and to 8ee where the Supreme Court and Court of Military Appeals may be moving in this area. Military judge advocates must be aware of the equities and issues involved in c m n t pretrial confinement procedures. Jude advccates must ultimately choose whether to work to improve those procedures from within, at a comfortable pace, and to the degree deemed compatible with commanders' needs; or alternatively to simply maintain the status quo and perhaps subject the mil-itary justice system to rigid, unpalatable changes forced upon it by the Court of Military Appeals.

    Ultimately, the question is one of the fairness of military pretrial conhement procedures. Achievement of military objectives in combat and in peacetime demands discipline, and true military 'lustice" sene8 to enhance discipline by developing respect, trust and a senae of fair play and cooperation within the military community. Justice is the eantribution of the military legal profession to the accompliahment of the military mission, and improvement of the military justice system is an ongoing task, It ia incumbent upon ail military judge advoeates to argue vocif-erously for those changes in the military justice system which they feel will improve overall military effectiveness. This article presents such an argument.



    Throughout American judicial history, civilian courts have been hesitant to renew military activities.) It was generally believed that such

    I E Sherman. Judmial Remw of Mtlztaq Detenznattas and the Erhevbonof Rsmsdiea Reqwrmmt, 55 Va L Rev 4e.9 (19691 See D Peek, The JuSticcsand thcGanomls: TheSupre?ne Cou~andJudznalR~w~fMillloqAct~~tles, 70 Mil. L. Rev. 1 (1915): F. Bprker, Military La-A Sepamte System of JUI-iapmdsnce, 36 U. Cin. L.

    Rev. 223 (19671.

    deference wm required by the Constitution's grants of authority over the armed forces to the legislative and executive branches,l and by the necessities of military disci~line.~

    The principle of nonreviewability' clearly emerged for the first time in A "hands off'attitude by the courts toward review of military matters continued far several decades, but the erosion of nonreviewability notions was evident by the 1960~.~

    U. S. Const. art I, see. 8 gants Congress authority ta "make Rules far the Government and Regulation ofthe land and naval Forces. . ." U.S Conrt am,11, me. 2 stares that "the President shall be Commander in Chief of the Army and Navy of the United Stares. and of the Mililia of the several Starer. when d l e d into the aetusl Service of the United States . " See W. WinthroD, Milztaly Low and Precedent* 49 (Zd ed. 1920)

    E. Wmen, The Et11 o,fRghta and the .Mzldory. 37 X.Y.C.L. Rev 181, 167 (1962).

    [Ilt is indi6putable that the tradition of ow country from the time of the Revolution until now, ha8 supported the military establishment's broad power to deal with its o m personnel The mast absiaus reason 1s that courts are Ill-eqmpped to determine the impact upon dneiplme that any panieular intrusion upon mhtary authonty might have. Many of the problems aP the rmlitm meiery are, in a sense, alien to the problem8 wth which the judiciary IS trained to deal.


    For an insightful exammatian of the nonreviewablitg doetline, see E Sherman. supra note 1, and R. Momgomen., God, {he A m y and Judzciol Reotezc The In-S m ~ c s

    Consewntious Obireto7, 16 Cal. L. Rev. 979 (1968)

    E Dpes V. Hoover. 61 U. 6. (20 How ) 65 (1858). In this suit for assault. batlev, and false imprisonment arising Ram The execution of cow-manid ordered ean-flnement, the Supreme C o w found no suthonty ~n the civil c o w s to ieview the results of cows-martial.

    Nomeviewsbihry of mihtary administrative aetivifm B-BQ first established ~n Reaves V. Ainsworth, 219 U S. 296 (1911). An Army heufenant, discharged Ram the service by B board which met in secret, was denied due pmeerr relief by the Supreme Court. The Court found the board to be analogous irirh a military tribunal, in the same cafegory BQ B coun-mart~al. The Coy27 then declared that there exist8 a preaumptian against eivd corn review of military actions, and stated a disinelnatmn to interfere with the efficient operatian OF the Army.

    *Bums V. Wilson, 346 U.S. 187 (1953).

    Xonrenewabihty of eoufi-martial deeisions was pmidly rejected by the Supreme Cow. The C a w held that funda-mental due D~OC~SBnehts were to be accorded nemee~ersonsin order to noted them Rom :'crude mjhlces" and to guarantee at le&t "rudimentary fa&ers:' Hamon Y. Bmeher, 315 U.S.

    579 (191). In that ease. nomeviewability of mil-itary actiwties ather than courta-martial was called m questmn The Supreme


    More than two decades later, the trend is quite apparently in favor of reviewability, at least as far &s military administrative activities are

    Constitutional chalienges,8 especially due process claims? have with increasing kequency inspired Supreme Court review of mili-tary cases. In fwt, the Court has declared virtually all military actions to be reviewsble.1°

    [TI here is nothing in OUT Nation'a history or in this Court's

    decided cases, including OUT holding today, that can properly be seen as glving any indication that actual or threatened injury by reason of unlawful activities of the military would go unnoticed or unremedied.


    Like the doctrine of nonreviewability, notions of the applicability of constitutional safeguards to military personnel have changed over the years." Throughout most of American history, courts have been reiuctant

    Court found B statutoly imutation on the power of the Secretary of the Amy to discharge serncepersona, Lhus indicating s willingness to intervene in military &airs to prevent injjustices from Occurring.

    D. Peek, ~upmnote 1, at 55. The tern "mihtary administrative aetlvity" en- compasses all military activities other than courts-&id. Thus, miliw pretrial confinement is considered a milirnry administrative aetwity.


    Middendoriv. H e w , 425 U.S. 25 (1976); Greer Y. Spoek, 424 U.S. 828 (1975); Laird V. Tntum, 408 U.S.

    1 (1972). The Court held m favor of the military in these sixth amendment (Henry) and fmt amendment (Spocb. Taturn) eases. Of aignifieanee...

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