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THEY CALL IT JUSTICE Luther C. West, "They Call It Justice," Viking Press, 1977 I. WEST'S CRITIQUE OF MILITARY JUSTICE At its very best, and in its most ideal setting, military justice vindicates respect for law and order in those members of our society who demand punishment for those who violate our laws. But this, it is submitted, is about as far as it goes in maintaining "discipline." Military justice soothes the military ego and quiets the fear that lingers in the military breast against outright soldier mutiny -- and it also, of course, provides a means of punishing soldiers who break the law. But it is submitted that it does not serve as an implement of military discipline, or of instilling discipline in troops, whatever that term implies. It has no real connection with a soldier's willingness to fight and die for a particular cause....One does not affect military discipline through fair or unfair judicial procedures, not in the sense that the fear generated would drive a soldier to fight and die for a military objective. Hence it is necessary to evaluate military justice on its own merit, or lack of merit, without the usual security blanket of "discipline" that encases it from public view and criticism.... Military justice should and must be viewed for what it is -- a system of law providing for the military prosecution of people who violate military law. It is worthy of retention in our system of government only if it measures out to be a fair system of law, one that is based upon the rule of law and upon no other consideration. ...American military justice...is also quite distinct in major respects from most civilian systems. In civilian systems, one man (the convening authority) does not decide what offenses shall be covered up; what cases shall be prosecuted and what cases shall not; who shall sit upon the jury and who shall serve as judge, prosecuting attorney, and defense counsel. The chief of police in civilian communities is charged with the conduct of police investigation; but he does not select the grand jury, petty jury, prosecuting and defense counsel, and the trial judge. Nor is there a convening authority in civilian life who selects such officials from among his own employees only, over whose career he has life-and-death sway, and from whom he demands and receives complete loyalty and obedience. Civilian...prosecutors are usually elected, and have no connection with the police or the judiciary. Civilian defense counsel are independent of all branches of government, and cannot be stopped from advancing defense theories, regardless of the adverse effect of these theories upon government officials in any office. Nor will civilian defense counsel be...transferred to nontrial duties because they have displeased a local staff judge advocate. Civilian juries owe allegiance to no prosecuting or police official, nor are they lectured by government officials on the necessity of more convictions and heavier sentences -- or given poor "efficiency reports" because of the performance of judicial duties. Convictions in civilian systems are subjected to the highest state and federal review for compliance with the rule of law and with basic constitutional guaranties.....There is no watered-down, murky intent in civilian judicial systems to enforce "military due process" (as opposed to constitutional due process), or to instill fear in the hearts of soldiers, or to enhance the ability of a military commander to wage and win wars, or to secure his next higher promotion. There is no "under-the-table" deviation acceptable in civilian systems. Dishonest prosecutors and judges, if exposed, are prosecuted -- and are sentenced to jail. The very framework of American military justice, when compared with civilian standards, is thus warped from the beginning. It places too much trust and confidence in one man. It gives this individual, who is already burdened with the responsibility of battlefield victory, the additional duties of criminal investigation, grand jury responsibility, prosecutorial and defense responsibility, and judicial (judging) responsibility. It leads this same man to conclude that his judicial duties are closely connected with that of enforcing discipline within his command. Moreover, when the rule of law might conflict with military interest, the structure of the military system permits the same man (the convening authority) to overreach the rule of law, and to resolve the case upon the dictates of "military necessity." True, the letter of the law prohibits such action by a military commander, but the inbred nature of the system permits him to exceed the system at his whim, and to do so without real fear of prosecution even if caught. Still worse, it permits him to apply his own brand of "military necessity" to each case. It permits him to pick and choose where he will intercede and stack the jury, and tell them how to vote and what sentence to impose. It permits him to be arbitrary and unethical; and it encourages the coward, the incompetent, and the fool to manipulate his judicial processes to the same extent it encourages his counterpart -- the brave, intelligent, and competent commander. And in neither situation does it provide any real counterweight to prevent the misuse of the system. II. WEST'S CRITIQUE OF 1950 UCMJ REFORM ACT Since its creation in 1951, the United States Court of Military Appeals has made great strides in creating the beginning of a legitimate jurisprudence in the field of substantive military law. We now know the definition of most military crimes. But [UCMJ] has done pitifully little to prevent the military commander from usurping the independent functions of the military court. However, the real lack of improvement in military law in this regard does not lie at the door of the Court of Military Appeals. The real failure of the Uniform Code of Military Justice lies in the simple fact that under [UCMJ] the system of military justice is in the operational control of the military department. Military commanders and military staff judge advocates are not fair-minded men in the judicial sense, and they are at best incapable of operating a system of justice along democratic lines. Their ethical motivation is command-oriented, and their integrity is indistinguishable from the principles of loyalty and obedience. They respond to the dictates of their superior without regard for ethics, logic, common sense, intelligence, morality, or the rule of law. Military command supports the military system of justice, which includes time-honored beliefs that the military should control military courts. These same commanders are secure in the knowledge that their own superiors will wholeheartedly support them in their defiance of the rule of law in military cases, and would consider them derelict as commanders if they failed to thwart civilian control of the system. If a military defense counsel were brash enough to expose a superior's illegal efforts in the judicial area, the worst that could happen to the superior would be the loss of the particular case involved, or a series of cases if the illegality affected more than one case. But under no circumstances would the superior himself be prosecuted for jury fixing by another military commander. In other words, the "offense" of maintaining "discipline" within a military command is not recognized as criminal in the military community. While the same offense in civilian life (i.e., jury tampering) would be prosecuted with zeal, this is simply not the rule in military law. Jury tampering by military commanders in the court-martial process is perfectly acceptable in the military community and carries with it no threat at all of prosecution if exposed. III. WEST'S COMPARISON OF AMERICAN TO NATO MILITARY JUSTICE Military justice decisions thus involve such nonlegal issues as what is best for the military establishment, what is best for the individual commander, second-guessing superiors, fear of not being promoted, and a host of related subjects....Equal justice under the rule of law, mercy, moral principle, and human understanding may play no part at all when the military mind resolves to try or not to try an individual, or to convict an accused of a particular crime, whether it be simple AWOL or mass murder. The builders of future military law, our legislators of tomorrow, should take heed of the fact that many nations following World War II moved to "civilianize" their court-martial systems. Reportedly, West Germany and Sweden essentially abolished their court-martial systems, and civilian courts in both these nations try all military offenders who violate the law. Austria and Denmark have followed the lead in this regard. Civilian control over the court-martial process was greatly enlarged in England, France, Norway, Canada, Australia, Belgium, the Netherlands, Switzerland, and Italy. Only the United States, of all major Western nations, still clings to its long-outmoded concept of military justice.... IV. WEST'S PROPOSALS TO REFORM U.S. MILITARY JUSTICE If morality and efficiency of judicial operation are to be weighed as critical factors in the administration of military justice, change must be effected. The moving force for change must of necessity come from an enlightened American people and Congress. It is wrong and immoral on the part of our people and government to subject American servicemen and women needlessly to command-oriented, command-controlled judicial processes, where the dictates of military command, and the interest of its ruling officer caste, so greatly outweigh those of justice under the rule of law. Thus, from the viewpoint of honest administration and from the viewpoint of enforcing the rule of law, the military commander should not be permitted to operate the military judicial system -- for the plain reason that he will not operate it honestly; he will manipulate it to suit his own ends as a career military officer. It is submitted that the operation of the military judicial system should be placed in the hands of civilian administrators, preferably under the control of the attorney general of the United States. Civilian trial lawyers and civilian judges should fill the roles presently filled by military legal officers in every branch of military justice, and convening authorities who insist upon tampering with military juries should be prosecuted in United States District Courts. The investigation of criminal offenses within the military community, the preferring of court-martial charges against military defendants, and the referral of those charges to trial should be under the control of civilians. Our lesson from history in this regard is that lesser procedural reforms designed to leave the military judicial system in the operational control of military commanders are reforms in name only. Only when reform changes the very basis of the system and removes the system completely from military control, will the possibility of command influence be significantly reduced in courts-martial practice. While many forms or models of military justice can be designed to effect the foregoing principles, I endorse a system that would contain only one feature of present-day military practice -- and my reason for retaining that one feature is practical rather than substantive. I do not believe, for example, that it would be practical to try courts-martial before juries composed of white farmers in southern Alabama; nor do I believe it practical to try cases in the industrial northeastern portion of the country before juries composed of blacks drawn largely from the inner-city ghetto. Also, I do not believe it would be practical to try most overseas offenses of American service personnel before civilian juries in the United States. I have found in the trial of military cases that juries composed of officers and enlisted men, when completely severed from command interests, render fair and just verdicts. Thus, in the system I recommend, the military judicial system would be staffed and operated by civilians in every respect save one: I would retain the present military jury -- but I would provide that the jury be drawn by lot by civilian administrators from commands totally disconnected from that of the accused serviceman or servicewoman to be tried. I would add one further safeguard. The present-day Court of Military Appeals should be retained, with modification. Military appellate procedure should include an appeal for good cause shown to the various United States Courts of Appeals (the circuit would depend upon the geographical location of the offense involved); and thence, again for good cause shown, to the Supreme Court of the United States for final judgment. It is submitted that only changes of this magnitude can break the stranglehold of command control that presently exists in the military judicial system, or establish a court-martial system worthy of public trust and esteem. |