AuthorShure, Lauren A.
  1. Introduction II. What is Military Justice and How is it Different? A. Military Justice's Purpose and the Role of the Commander B. Other Key Differences Between the Military Justice System and Civilian Criminal Justice 1. Substantive Criminal Law 2. The Lack of a Right to a Jury Trial 3. Judges 4. Constitutional Compromises and Statutory Protections C. Military Justice: Executive or Judicial? III. Ortiz v. United States A. Background and Procedural History B. Majority Opinion C. Concurring Opinion D. Dissenting Opinion IV. Application--The Meaning and Impact of Ortiz A. Reaction and Issues B. Analysis V. Conclusion I. Introduction

    The U.S. military justice system has always been somewhat of a curiosity, an odd cousin to American criminal justice that is not quite fully like civilian criminal courts but not entirely unlike them either. Its status as a unique hybrid of military discipline and civilian-like justice has never been fully resolved. As one recent exploration of the nature of military justice explained, "there has always been, and will always be, a debate over the exact purpose and function of the military justice system." [1]

    Ortiz v. United States [2] was not supposed to be the case that further fueled the debate over what exactly military justice is. It involved an obscure issue about an ancillary component of the military justice system involving the composition of an appellate panel that adjudicated the appeal of a routine court-martial conviction. The granted issue dealt with the following unremarkable question: whether a military judge's participation in the case at the Air Force appeals court while simultaneously serving on the Court of Military Commission Review violated a statute that generally prohibits active duty military officers from simultaneously serving in certain civil offices. [3] The Court ultimately had no trouble disposing of that issue, and the case normally would have been a footnote in the story of military justice.

    However, a University of Virginia law professor's efforts made Ortiz much more meaningful. In forcing the Supreme Court to examine its jurisdiction over matters arising from the military justice system, the professor drove a decision that--despite a Court that seemed approving of military justice--just may have sounded the death knell for the military justice system as we know it. Ortiz ultimately raises two fundamental issues that may dramatically alter what the military justice system becomes. First, in finding that the military justice system is inherently judicial rather than disciplinary in nature, does a valid justification for an independent military justice system remain? In other words, if, as the Ortiz majority held, court-martial proceedings have become virtually indistinguishable from any other federal courts, does this support the position of some political leaders and groups who have advocated removing commanders from the court-martial process? Second, and conversely, if the Ortiz dissent is correct that the Court has no jurisdiction over appeals because military courts are not Article III courts, what does this say about the inherent fairness of the military justice system? If military courts-martial are not "courts" at all, then does military justice satisfy modern notions of fairness?

    Ultimately, Ortiz forces policymakers to reconsider the underlying question of exactly what the military justice system is. This article explores the ramifications of the Ortiz decision. As the system has evolved from a mere instrument of command authority to something more resembling a civilian criminal justice system, the question of whether the military justice system is executive or judicial presents itself. Both the Ortiz majority and dissenting opinions paint those two as mutually exclusive and incapable of existing within one body. Is that right, or is it perhaps true that the military justice system can maintain its unique hybrid status, unlike anything else in the American system of jurisprudence?

    This article begins with a brief review of the military justice system and the evolving views about what exactly military justice is and how it fits within our constitutional framework, with an emphasis on the role of the commander. It then explores the path of Ortiz to the Supreme Court and details the split opinions over the issue of the Court's jurisdiction to hear matters arising from the military justice system. Finally, the article examines possible answers to the important questions that Ortiz raises about the military justice system. It concludes that neither the majority nor the dissenting opinions adequately address the question of what exactly military justice is, and thus what manner of reforms of the system should be made. Undeniably, the military justice system we know today is not the same as even the military justice system of ten years ago. Ortiz has set the stage--along with the other recent changes in the law--for the future of military justice to fundamentally shift. Military justice is first and foremost a system founded on discipline. Without discipline, the basic fabric of our military degrades. Political forces have always influenced the shape of the military, and that influence simply creates a necessary fluidity. While the military justice system will likely always need an aspect of discipline, the Ortiz majority opinion calls into question what role discipline will play in military justice going forward.

  2. What is Military Justice and How is it Different?

    1. Military Justice's Purpose and the Role of the Commander

      Any student of military justice understands that military justice is not the same as the civilian criminal justice system. Military justice may resemble civilian criminal justice to a casual observer: court-martial proceedings take place in a familiar-looking courtroom with a military judge, attorneys representing both the government and the accused service member, rules of evidence, and a group of panel members that functions much like a jury. [4] However, appearances can be deceiving.

      The military justice system has a distinct purpose, set forth in the Manual for Courts-Martial's preamble. That purpose is "to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States." [5] Thus, apart from the intent to "promote justice," military justice has unique purposes, and thus a different system. Most notably different, the commander plays a central role in the military justice system while leading his or her organization in readying for combat. [6]

      The commander's role in military justice is rooted in history. As the Army Court of Criminal Appeals recognized in modern times, "Up until World War I, commanders and the public felt that the disciplining of troops was primarily commanders' business, because a commander who could be trusted to take his troops into combat could also be trusted to treat them fairly in courts-martial." [7] Thus, well into the last century, "U.S. military commanders enjoyed a position of almost absolute power within the military justice system." [8] That ultimately changed following World War II, as concerns about the commander's role in military justice drove Congress to enact reforms that resulted in the Uniform Code of Military Justice (UCMJ). Today, the UCMJ remains largely intact from its original version with more additions rather than removals, while systematic operations have dramatically changed over time. [9] These reforms sought to maintain a role for the commander in the system to maintain good order and discipline, but also to increase the role of lawyers to protect due process and ensure justice, supplying a check and balance in the military justice process. [10]

      Thus, even after the World War II-era reforms, military justice is not equivalent to civilian criminal justice. "Justice" is but one goal of military justice. Commanders retain a central role in the military justice system to this day. [11] The commander's role is "[d]istinctive to military justice" with "no correlate in civilian criminal justice." [12] Commanders take a number of quasi-judicial actions in courts-martial; the commander "prefers" charges against the accused and creates the court-martial by "referring" the case to trial. [13] Once the court-martial process is underway, commanders make many of the major decisions involving the case, including whether to accept an offer for a plea agreement; whether to grant immunity to potential military witnesses; and whether to approve agreements to employ expert witnesses. [14] In the post-trial stage, the commander who refers the case receives submissions from the convicted service member and defense counsel, and may grant relief either relating to the findings or sentence under certain situations. [15]

      Thus, the military justice system "upholds[s] the central role of the commanding officer as convening authority with the consolidation of executive and judicial functions." [16] This role remains controversial, however. For example, a 2001 report on the 50th anniversary of the UCMJ observed:

      [T]he far-reaching role of commanding officers in the court-martial process remains the greatest barrier to operating a fair system of criminal justice within the armed forces. Fifty years into the legal regime implemented by the UCMJ, commanding officers still loom over courts-martial, able to intervene and affect the outcomes of trials in a variety of ways. The Commission recognizes that in order to maintain a disciplinary system as well as a justice system commanders must have a significant role in the prosecution of crime at courts-martial. But this role must not be permitted to undermine the standard of due process to which servicemembers are entitled. [17] The commander's role in the military justice system and...

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