Courts-martial in the United States: Wikis


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Courts-martial in the United States are criminal trials conducted by the U.S. military. Most commonly, courts-martial are convened to try members of the U.S. military for violations of the Uniform Code of Military Justice, which is the U.S. military's criminal code. However, they can also be convened for other purposes, including military tribunals and the enforcement of martial law in an occupied territory. Courts-martial are governed by the rules of procedure and evidence laid out in the Manual for Courts-Martial and Military Rules of Evidence, respectively.

Courts-martial are adversarial proceedings, as are all United States criminal courts. That is, lawyers representing the government and the accused present the facts, legal aspects, and arguments most favorable to each side; a military judge determines questions of law, and the members of the panel (or military judge in a judge-alone case) determine questions of fact.


Types of court-martial

There are three types of courts-martial—summary, special and general. A conviction at a general court-martial is equivalent to a civilian conviction in a federal district court. Special courts-martial are considered "federal misdemeanor courts" because they cannot impose confinement longer than one year. Summary courts-martial have no civilian equivalent.


Summary Court-Martial

Trial by summary court-martial provides a simple procedure for resolution of charges of relatively minor misconduct committed by enlisted members of the military. The summary court-martial consists of one individual, typically a judge advocate. That one officer acts both as prosecuting attorney and defense counsel. The maximum punishment at a summary court martial varies with the accused's paygrade. If the accused is in the pay grade of E-4 or below, he or she can be sentenced to 30 days of confinement, reduction to pay grade E-1, or restriction for 60 days. Punishments for servicemembers in paygrades E-5 and higher are similar, except that they can only be reduced one paygrade and cannot be confined.

Military members who refuse Article 15 nonjudicial punishment can be referred for special court-martial. Usually this decision is made after the commanding officer consults with the local JAG commander. The accused must consent to trial by summary court-martial before the court can commence.

Special Court-Martial

A special court-martial is the intermediate court level. It consists of a military judge, trial counsel (prosecutor), defense counsel, and a minimum of three officers sitting as a panel of court members or jury. An enlisted accused may request a court composed of at least one-third enlisted personnel. An accused may also request trial by judge alone. Regardless of the offenses involved, a special court-martial sentence is limited to no more than one year confinement (or a lesser amount if the offenses have a lower maximum), forfeiture of two-third’s basic pay per month for one year, a bad-conduct discharge (for enlisted personnel), and certain lesser punishments. An officer accused in a special court-martial cannot be dismissed from the service or confined.

General Court-Martial

In a general court-martial, the maximum punishment is that set for each offense under the Manual for Courts-Martial (MCM), and may include death (for certain offenses), confinement, a dishonorable or bad conduct discharge for enlisted personnel, a dismissal for officers, or a number of other forms of punishment. Before a case goes to a general court-martial, a pretrial investigation under Article 32 of the Uniform Code of Military Justice must be conducted, unless waived by the accused. An accused before any court-martial is entitled to free legal representation by military defense counsel (ADC-area defense counsel), and can also retain civilian counsel at his or her expense.

There are procedures for post-trial review in every case, although the extent of those appellate rights depends upon the punishment imposed by the court and approved by the convening authority. Cases involving a punitive discharge, dismissal, confinement for one year or more, or death will undergo automatic review by the appropriate military (Army, Navy, Air Force or Coast Guard) court of criminal appeals, unless the accused waives such review (although death sentences cannot be waived). The Court of Criminal Appeals can correct any legal error it may find, and it can reduce an excessive sentence. The accused will be assigned an appellate defense counsel to represent him or her at no cost before the Court. Civilian counsel may be retained at the accused's own expense. Beyond the Court of Criminal Appeals, the accused can petition the United States Court of Appeals for the Armed Forces for further review (review is automatic for death sentences). That court consists of 5 civilian judges, appointed for a fifteen year term, and it can correct any legal error it may find. Appellate defense counsel will also be available to assist the accused at no charge. Again, the accused can also be represented by civilian counsel, but at his or her own expense. Beyond that court, it is possible to petition the United States Supreme Court to review the case, although such petitions are rarely granted.

Jury trial in General Courts-Martial

While the Framers guaranteed American citizens the right of a jury trial both in the text of the Constitution and in the Bill of Rights, they denied it to those serving in the armed forces. And Congress, from the beginning, has retained the long-standing practice of a convening authority personally selecting the members of a court-martial panel.

A court-martial has always been an ad hoc tribunal created and appointed by the order of a commanding officer, called a convening authority, for the express purpose of considering a set of charges that the commander has referred to the court. The convening authority considers the statutory prescription offered by the United States Congress, those "best qualified," in selecting the panel for the court-martial. In turn, the members of the court-martial, who are generally under the command of the convening authority, take an oath to "faithfully and impartially try, according to the evidence, their conscience, and the laws applicable to trial by court-martial, the case of the accused." By their oath, the panel members expressly agree to leave behind any influence from the commander who appointed them. The current practice in the United States Armed Forces is to appoint a number of officers to a standing panel of members.

The appointed or retained defense attorney may challenge both the military judge and members of the panel for cause. However, the military judge determines the relevance and validity of any challenge. The prosecution and defense initially possess one peremptory challenge to members of the court-martial. The accused may also challenge a member of the panel for cause "at any other time during trial when it becomes apparent that a ground for challenge exists." The Uniform Code of Military Justice (UCMJ) prohibits a convening authority from unlawfully influencing the court. A defense attorney may bring a motion to challenge the validity of the court-martial where it appears that a convening authority has unlawfully influenced court-martial members. A convicted defendant may have his case reviewed de novo by an intermediate military criminal court of appeal, such as the Navy-Marine Corps Court of Criminal Appeal, and then possible further review by the United States Court of Appeals for the Armed Forces (CAAF).

Appeals in courts-martial

If a service member is court-martialed and they feel that the result was unjust, then the service member can submit their case to the convening authority, which is the officer (usually a general or admiral) that originally had the service member court-martialed. This is similar to asking a civilian governor for clemency or a pardon. After clemency requests the service member may submit their case for review to the Court of Criminal Appeal for their branch. A service member, if sentenced to more than a year confinement, a punitive discharge or dismissal may petition the nation's highest military - the Court of Appeals for the Armed Forces.[1][2] However, review by the CAAF is discretionary with less than 20 percent of cases reviewed a year.[3] See Air Force Court of Criminal Appeals, Army Court of Criminal Appeals, Coast Guard Court of Criminal Appeals, Navy-Marine Corps Court of Criminal Appeal, and Court of Appeals for the Armed Forces.

Recent controversy over Supreme Court access

We sent these young men and women off to war to promote democracy, yet we don't even want to allow them access to the nation's highest court in the land.

—Norbert Basil MacLean III quoted in "Momentum Grows for Opening High Court to Servicemembers"
Los Angeles Daily Journal (July 17, 2007), front page.

Since the establishment of the Supreme Court by the United States Constitution in 1789, the United States, did not allow its uniformed citizens direct appeal to the nation’s highest court should the service member be convicted by courts-martial. In 1950 Congress created the modern military justice system by enacting, in 1951, the UCMJ. It wasn't until 1984 when Congress passed the Military Justice Act of 1983 that service members had very limited access to the Supreme Court. The act skewed the law in favor of government appeals thereby creating inequities for America's uniformed citizens wishing to appeal a court-martial conviction to the Supreme Court.[4] Under existing law, Title 28 United States Code section 1259, a service member may only appeal to the Supreme Court in death penalty cases or if granted review by the Court of Appeals for the Armed Forces - which happens about twenty percent of the time.[5] Eighty percent of all American court-martialed service members are completely sealed off from Supreme Court access due to the inequity.[3][6] The Court of Appeals for the Armed Forces acts as gatekeeper to the Supreme Court unlike any other federal appeals court in America. The government can appeal any adverse ruling in which the service member prevails by having the individual service judge advocate general certify an issue for appeal.[4]

Two bills have been introduced in the 111th Congress to correct the inequity: (1) Equal Justice for Our Military Act of 2009, HR 569 and (2) Equal Justice for United States Military Personnel Act of 2009, S.357. The principal moving force behind the legislation is said to be Navy veteran Norbert Basil MacLean III.[7]

As the final last resort, the convicted service member can ask for executive clemency also known as a 'reprieve', or a pardon from the President.

Examples of cases affected by inequity in the law

U.S. Government appeals after service member prevails in military courts

Recent examples of cases in which the service member prevailed before the U.S. Court of Appeals for the Armed Forces in which the United States sought to appeal to the U.S. Supreme Court include:

Cases of service members who were denied access to Supreme Court

Recent examples of cases involving constitutional issues in which the service member was either denied review or relief by the U.S. Court of Appeals for the Armed Forces and as a result of 28 U.S.C. sections 1259(3) and/or 1259(4) were precluded from filing a petition for certiorari with the U.S. Supreme Court include:

  • Lis v. United States, 66 M.J. 292 (CAAF 2008)
  • MacLean v. United States, 59 M.J. 340 (CAAF 2004)
  • United States v. Belkowitz, 65 M.J. 329 (CAAF 2007)
  • United States v. Sanford , 64 M.J. 249 (CAAF 2007)
  • Watada v. Head, 65 M.J. 417 (CAAF 2007)

Historical development

From the earliest beginnings of the United States, military commanders have played a central role in the administration of military justice. The American military justice system, derived from its British predecessor, predates the Articles of Confederation and the Constitution. While military justice in the United States has evolved considerably over the years, the convening authority has remained the instrument of selecting a panel for courts-martial.

Tribunals for the trial of military offenders have coexisted with the early history of armies. The modern court-martial is deeply rooted in systems that predated written military codes and were designed to bring order and discipline to armed, and sometimes barbarous fighting forces. Both the Greeks and Romans had military justice codes, although no written versions of them remain. Moreover, nearly every form of military tribunal included a trial before a panel or members of some type.

The greatest influence on the modern court-martial comes from the Court of Chivalry in England and the military code of Sweden's King Gustavus Adolphus. These courts both struck a balance between the demands of good order and discipline and concepts of due process. This, in turn, laid a foundation for modern systems of military justice that strive to do the same. The Court of Chivalry had a direct impact on the British Articles of War. The early British Articles of War reflected a concern for due process and panel member composition.

When war broke out between the American Colonists and the British in 1775, the British were operating under the 1765 version of the Articles of War. This version would serve as the template for military justice in the Continental Army. When the United States declared independence and fought the Revolutionary War, "it had a ready-made military justice system." Despite the Colonists dissatisfaction with the British, they still recognized the intrinsic value of the British military justice system in providing good order and discipline to its own armed forces.

While the 1765 British Articles of War were the template for the American military justice system, the Founding Fathers decided to break away from the British system in significant ways. First, the American Articles of War were a legislative enactment and not an executive order. In the American system, the legislature undertook the government of the armed forces from the beginning - military justice was not going to be left to the executive. Second, Congress demonstrated its flexibility and willingness to change the Articles as necessary. The top military lawyer, Colonel William Tudor, informed Congress that the Articles were in need of revision. Congress would go on to revise the Articles several times to reflect the realities of a small military. Nonetheless, the commander retained his role in the administration of justice.

The Founding Fathers perceived the weaknesses and merits of the British Articles of War. They updated, revised, and provided flexibility to a rigid legal system, with concerns for due process and the importance of providing good order and discipline to its own armed forces. The Founding Fathers maintained the role of the commander in military justice. Once independence was achieved, the Founding Fathers could create a "more perfect Union" and assign the military its proper place within it.

After the American Civil War, the only U.S. soldier executed for desertion was Private Eddie Slovik.

Constitutional foundation

The Framers of the Constitution were cognizant of the power struggle between Parliament and the King regarding the powers of the military. Many of the Framers were combat veterans from the Continental Army and understood the demands of military life and the need for a well-disciplined fighting force. The solution to the government of the armed forces was a classic balancing of constitutional interests and powers. They assured that Congress - with its responsiveness to the population, its fact-finding ability, and its collective deliberative processes - would provide for the government of the armed forces.

The Framers of the Constitution had a great respect for the value of separation of powers. One of the primary goals of the Constitutional Convention, in remedying the defects of the Articles of Confederation, was to create a government in which separate branches of power served as a check and balance against the other. Principles of separation of powers also applied to the military. The Framers vested power in the executive and legislative branches, but left the judiciary with only a collateral role in governing the armed forces.

By distributing power over the armed forces between the legislative and executive branches, the Framers "avoided much of the political-military power struggle which typified so much of the early history of the British court-martial system." Moreover, the Framers made it clear that while the command of the military lie with the executive, the military would be governed and regulated according to the law handed down by the legislative branch. Therefore, the government of the armed forces would always reflect the will of the people as expressed through their representatives in Congress.

After ratification of the Constitution in 1789, the First Congress undertook legislative action to provide for the government and regulation of the armed forces. On September 29, 1789, the Congress expressly adopted the Articles of War that were currently in place for the Army. xxvii It can thus be said that Congress continued the court-martial as previously established, and "the court-martial is perceived to be in fact older than the Constitution, and therefore older than any court of the United States instituted or authorized by that instrument."

The Framers consciously placed the court-martial and military law in the legislative branch of the government. The First Congress and the Framers were also cognizant of the age and history of the court-martial with commander involvement, as well as the customs and traditions that pertained to it.

Under the Constitution, the President's pardon power extends to convictions obtained in military court-martial proceedings. While a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of conviction. Therefore, even if one is granted a pardon, they must still disclose the conviction on any form where such information is required, although they may also disclose the fact that they received a pardon. (excerpted from: [1] )

Courts-Martial as legislative (Article I) courts

In parsing the debate about command selection of jury members, it is important to place the court-martial in its context as a legislative (Article I) court. Article III courts do not handle all of the judicial business in the United States. For over two hundred years, Congress has used its enumerated powers under the Constitution in conjunction with the Necessary and Proper Clause to create specialized tribunals, including courts-martial, which are free from the protections of Article III. There are no constitutional infirmities in the creation of these courts. In fact, these courts help Congress carry out its enumerated powers efficiently - the court-martial is an example where the protections, procedures, and inherent inefficiencies of Article III courts would interfere with the military's ability to use the system effectively to help maintain good order and discipline.

Even where life and liberty are at stake, legislative courts are not required to grant due process rights that are intrinsic to the Article III courts. The Supreme Court has, instead, employed an analysis that examines whether the statutory due process system of a given legislative court grants what it calls "fundamental rights." The Supreme Court simply applies a different constitutional analysis to legislative courts than to Article III courts.

Of all the legislative courts created by Congress, courts-martial have received the most deference from Article III courts. Under a standard of review known as the "separate community" or "military deference" doctrine, the courts have proclaimed the armed forces to be a distinct subculture with unique needs, "a specialized society separate from civilian society." While some scholars have argued against the idea of a separate legal system for the military, the Article III courts continue the doctrine of deference. Where there is a conflict between the constitutional rights of the individual service member and an asserted military purpose, the courts have deferred to Congress' ability, and duty, to balance the appropriate factors and reach a necessary compromise.

Today's court-martial system, including command selection of jurors, would seem to pass muster under the Supreme Court's constitutional analysis for legislative courts. The accused enjoys due process rights similar to the "fundamental rights" the Court recognized in other legislative courts. A defendant has many rights, including:

  1. assistance of counsel at all levels of the court-martial;
  2. information of the charges brought against the defendant, including a bill of particulars;
  3. a speedy trial;
  4. compulsory process of witnesses and evidence;
  5. the privilege against self-incrimination; and
  6. extensive appellate review.

When placed in its context as a legislative court, the statutory grant of due process in a court-martial compares favorably with what an accused criminal can demand as a matter of right in other legislative courts. The balance that Congress has struck between an individual's rights and the purposes of the military will not lightly be disturbed by an Article III court.

Congressional oversight

The Framers consciously placed the government and regulation of the military in the hands of the legislative branch. Congress has provided oversight of the military jury selection process since the Founding. In over two hundred and twenty-five years of congressional control over the court-martial system, the practice of command selection of the jury has survived every attack. Over the years, Congress has statutorily limited the discretion of the convening authority and created a justice system that seeks to balance the legitimate needs of the military with the demands of due process.

Following both World War I and II, there were outcries for Congress to reform military justice. When the troops returned from WWI, the public was outraged with stories of miscarriages of justice. This led to the first public movement to civilianize military law. In 1920, Congress made necessary revisions to the Articles of War. This led to the imposition of a set of personal criteria for the commander to consider in selecting a panel. After WWII, there were more concerns about military justice, and, in particular, the serious problem of command domination of the courts-martial. Congress again made reforms to the Articles by attempting to solve the problem of unlawful command influence by prohibiting the convening authority and other commanders from censuring, reprimanding, admonishing, coercing, or unlawfully influencing any member in reaching the findings or sentence in any case. The reforms did not adequately address the problems of military justice and Congress prepared for more drastic measures.

81st Congress sets out to create the UCMJ

The Eighty-First Congress set out to create a unified system of military justice for all the services, and appointed a committee chaired by Harvard Law Professor Edmund Morgan to study military justice and draft appropriate legislation. According to Professor Morgan, the task was to draft legislation that would ensure full protection of the rights of individuals subject to the UCMJ without unduly interfering with either military discipline or the exercise of military functions. This would mean a "complete repudiation of a system of military justice conceived of only as an instrument of command," but would also negate "a system designed to be administered as the criminal law is administered in a civilian criminal court." The result was the Uniform Code of Military Justice, or UCMJ - a code that granted unprecedented rights to service members, while still retaining command control over the appointment of court-martial members.

The UCMJ was not an ideal system of justice, but given its purpose of sustaining good order and discipline within the military without unduly impairing operations, it could not be. Many individuals, groups, and organizations protested, but Congress retained the commander as the central figure of the military justice system. However, Congress significantly modified the commander's powers and added statutory checks and balances to limit outright despotism.

Quarter century of no substantive hearings in Congress on UCMJ

Congress has not held any substantive hearings in over a quarter of century on the UCMJ. The last time a Congressional committee had a formal hearing on the UCMJ was when it passed the Military Justice Act of 1983. In terms of jury selection by the commander, there have been countless efforts to remove the commander and implement random selection. Yet, Congress did not adopt any of these plans. In 1999, the Secretary of Defense was required by Congress to study the issue of command selection of panel members. Once again, Congress did not take action when the Joint Services Committee (JSC) concluded that the "current system is most likely to obtain the best members within the operational constraints of the military justice system."

In 2001, the Commission on the 50th Anniversary of the Uniform Code of Military Justice sharply disagreed with the JSC Report, noting at page 7 of its report that "there is no aspect of military criminal procedure that diverges further from civilian practice, or creates a greater impression of improper influence than the antiquated process of panel selection." The story has been one of constant outcry for reform in the military jury selection process, but Congress has not seen it wise to modify the current system.

On February 24, 2009, Rep. Ike Skelton (D-Mo.), the chairman of the House Armed Services Committee and Rep. Susan Davis (D-Calif.), the chairwoman of the Subcommittee on Military Personnel, sent a letter to the House Judiciary Committee calling for a hearing on the Equal Justice for Our Military Act of 2009.[8]

Further reading

See also


  1. ^ Macomb, Alexander, A Treatise on Martial Law, and Courts-Martial as Practiced in the United States. (Charleston: J. Hoff, 1809), republished (New York: Lawbook Exchange, June 2007), ISBN 1584777095, ISBN 978-1584777090
  2. ^ Pollack, Estela I. Velez, Military Courts-Martial: An Overview, Congressional Research Service, May 16, 2004
  3. ^ a b Becker, Bernie, "Military Appeals Process is Challenged", New York Times, November 27, 2008, A30
  4. ^ a b Elsea, Jennifer K., Supreme Court Review of Decisions of the U.S. Court of Appeals for the Armed Forces Under Writs of Certiorari, Congressional Research Service, February 27, 2006
  5. ^ Barry, Kevin, A Face Lift (And Much More) For An Aging Beauty: The Cox Commission Recommendations To Rejuvenate The Uniform Code Of Military Justice, 2002 L. Rev. M.S.U. – D.C.L. 57 (2002)
  6. ^ U.S. Congress. Senate. (2007) Senator Feinstein of California statement on Equal Justice for United States Military Personnel Act of 2007. 110th Cong. 1st sess. Congressional Record-Senate S11588 (September 17, 2007)
  7. ^ BIG news: House of Representatives passes bill to expand servicemembers' access to SCOTUS, September 28, 2008 (retrieved on March 17, 2009)
  8. ^ Sullivan, Dwight, Representatives Skelton and Davis request hearing on H.R. 569,, March 4, 2009
  9. ^ Macomb on Martial Law and Courts Martial.


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