# The American Military Justice System in the New Millennium

[Lieutenant Colonel James B. Roan]{.smallcaps}[^1]

[Captain Cynthia Buxton]{.smallcaps}\*\*

# 

# I. INTRODUCTION

"Nothing is more harmful to the service than the neglect of discipline;
for that discipline, more than numbers, gives one army superiority over
another."[^2] As commander of the Continental Army, George Washington
recognized that no military unit could function without an effective
means of preserving discipline. These words uttered in 1759 ring no less
true today. Commanders must have the ability to ensure that service
members perform their duties and follow orders, even in situations
involving life and death. The American military justice system,
formulated over centuries of experience, meets this need.

Most people in the United States and abroad have glimpsed the American
military justice process through fictionalized television programs such
as "JAG," or through movies such as "A Few Good Men" or "The Caine
Mutiny." However fleeting these images have been, they have created a
perception of what military justice is in the United States. While these
productions may be entertaining drama, they generally do not accurately
portray the workings of the process, purpose, or importance of the
military justice system and how it is inextricably linked to the
national security of the United States.

We are in a time when some outside the American military are calling for
fundamental changes to our system. The academic debate that has
coincided with the 50^th^ Anniversary of the Uniform Code of Military
Justice[^3] has been healthy and valuable. No legal system can or should
operate in a vacuum, disregarding the changing norms of society. But
make no mistake, the American military justice system is not static or
outdated; it is dynamic and evolving. It incorporates the fundamental
protections offered to all United States citizens and, in many ways,
exceeds them. To appreciate the merits and importance of the military
justice system fully, it is essential to understand the purpose,
development, and procedures behind this specialized form of legal
jurisprudence. This article illustrates the necessity and merits of the
United States military justice system. It is intended to foster a better
understanding and appreciation for the system by all who read it.

# 

# II. WHAT IS THE MILITARY JUSTICE SYSTEM?

The preamble to the Manual for Courts-Martial (MCM) declares that the
purpose of military law "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."[^4] The maintenance of good
order and discipline is an absolutely essential *function of command*.
In fact, in the American military, a commander has a duty to ensure that
good order and discipline is maintained throughout his or her unit.[^5]
The military justice system is an important means to discharge this
duty.

The military justice system operates separately from our federal and
state criminal systems.[^6] Military law handles traditional crimes such
as assault and larceny, as well as offenses unique to the military such
as failure to obey orders and absence without leave. With worldwide
application, the military justice system applies to all offenses
committed by military members. Its central purpose is to provide
commanders with the legal authority to enforce good order and discipline
within their units.

The modern military justice system is based on the United States
Constitution and is implemented through a combination of federal law and
executive orders. The Constitution gives Congress the authority to
"provide for the common Defence," "to raise and support Armies," and "to
make rules for the Government and Regulation of the land and naval
Forces."[^7] At the same time, the Constitution designates the President
as Commander in Chief of the armed forces.[^8] In this constitutional
framework, the modern military justice system was established with a
foundation resting on four authorities: the Uniform Code of Military
Justice (UCMJ);[^9] the Manual for Courts-Martial (MCM);[^10] a
Presidential Executive Order that includes the rules for trial by
court-martial; and, the body of case law developed from the courts that
review military justice cases: the service Courts of Criminal Appeals,
the Court of Appeals for the Armed Forces, and the United States Supreme
Court.[^11]

*A. Creation of the Uniform Code of Military Justice*[^12]

On May 5, 1950, President Truman signed into law the Uniform Code of
Military Justice, a remarkable piece of legislation that dramatically
changed the scope and practice of military law. Prior to the enactment
of the UCMJ, military justice in the United States had remained
virtually unchanged since the time of the Revolutionary War[^13] when
the Articles of War governed the Army disciplinary system while the Navy
followed the Articles of Government for the Navy.[^14]

World War II set the stage for the creation of today's military justice
system. The American public, in the 1940's, was exposed as never before
to the military justice system. During World War II, more than 16
million men and women served in the armed forces. There were more than
two million courts-martial, including 80 thousand general
courts-martial.[^15]

Many were concerned with the almost summary disposition of cases, the
lack of rights afforded to an accused, and the perceived unlawful
command control over the system. The system appeared arbitrary, with too
few protections for the soldier and too much power for the commander.
Rear Admiral Robert J. White described the ground swell of criticism
against military justice thusly: "The emotions suppressed during the
long, tense period of global warfare were released by peace, and erupted
into a tornado-like explosion of violent feelings, abusive criticism of
the military, and aggressive pressures on Congress for fundamental
reforms in the court-martial system."[^16] Congressional leaders sought
to create a new disciplinary system that provided greater protections
for service members. Ohio Congressman Charles H. Elston, Chairman of the
House Armed Services Committee, expressed hope that "we will be able to
write some legislation applicable to both the Army and the Navy, so that
the entire system within those branches may be revised."[^17]

On May 14, 1948, Secretary of Defense James Forrestal announced the
creation of a committee, chaired by Harvard Law Professor Edmund Morgan,
to draft the first American statute of criminal law and procedure
applicable to all military personnel. The result was the Uniform Code of
Military Justice, otherwise known as the UCMJ, which President Truman
signed into law on May 5, 1950.[^18] The Code became effective on May
31, 1951, in the midst of the Korean War.

The UCMJ marked a distinct evolution in philosophy. Its drafters
recognized that justice and fairness were an integral component of the
disciplinary process.[^19] Under the UCMJ, the commander retained
considerable authority over his troops, but that authority was balanced
with a new system of military appellate courts and expanded rights for
service members. A new federal court, the Court of Military Appeals, was
created with civilian judges responsible for appellate review of the
more serious military justice cases.[^20] The UCMJ provided an expanded
role for lawyers, called judge advocates, gave increased
responsibilities to the staff judge advocate to provide legal advice to
commanders on military justice matters, and created the position of law
officer, the precursor of the military judge, to make judicial rulings
in all general courts-martial. The UCMJ was the most far-reaching change
in military law in American history, providing for the first time one
criminal code applicable to all the services and a criminal justice
system containing safeguards for the soldier not yet enjoyed by
civilians.[^21]

# *B. Why Do We Have a Separate System?*

To appreciate the importance of the military justice system, it is
necessary to first understand why a separate system of justice is
needed. Judge Robinson O. Everett, former Chief Judge of the Court of
Military Appeals, described the importance of having a separate justice
system for the armed forces, this way:

> \[M\]ilitary operations in modern war demand split second decisions -
> decisions that cannot be arrived at through the procedure of a
> debating society. In many military situations someone individual must
> be in a position to make choices for a group and have his decision
> enforced. For this reason, the armed services have a system of rank
> and of command which is designed clearly to place one person in charge
> when a group action must be decided upon. Of course, for American
> civilians, and those of many other lands for that matter, it is
> difficult to acquire habits of instantaneous obedience to another
> person's decisions. Military justice provides a stimulus to cultivate
> such habits by posing the threat that disobedience of commands will be
> penalized.[^22]

The United States Supreme Court has recognized that the military is a
specialized society that has developed laws and traditions of its
own.[^23] The difference between military and civilian cultures lies
with the recognition that \"it is the primary business of armies and
navies to fight or be ready to fight wars should the occasion
arise.\"[^24] The Court observed, \"An army is not a deliberative body.
It is the executive arm. Its law is that of obedience. No question can
be left open as to the right to command in the officer, or the duty of
obedience in the soldier.\"[^25] Similarly, the Court concluded,
\"\[T\]he military constitutes a specialized community governed by a
separate discipline from that of the civilian.\"[^26]

Civilian law does not recognize uniquely military offenses, such as
desertion, absence without leave, disobedience of orders, disrespect, or
dereliction of duty.[^27] These types of offenses exist to ensure
military members follow orders and accomplish military objectives.[^28]
If a commander cannot rely on his subordinates to obey and execute
directives and, more importantly, if the members cannot rely absolutely
on each other to follow orders, the effectiveness of the fighting force
will be undermined and, ultimately, our national interests will be
imperiled. No civilian parallel may be drawn to explain the need for
enforcing discipline. Civilian employers cannot legally *compel* their
subordinates to come to work on time, much less induce them to perform a
task resulting in substantial likelihood of death. Discipline for the
sake of good order is not an objective of our civilian society, but is a
necessary requirement of our military justice system.[^29]

The Uniform Code of Military Justice provides a very effective means of
not only handling military offenses, but also ensuring the process is
widely available. This is advantageous in that United States military
members are stationed all over the world.[^30] The civilian justice
system is not generally designed to be used outside the geographical
boundaries of the United States.[^31] The military justice system, on
the other hand, goes wherever the troops go--to provide uniform
treatment regardless of locale or circumstances.[^32] While military
members are frequently subjected to the criminal jurisdiction of host
nations, most cases are tried in accordance with international
agreements and treaties reflecting the American system's application. If
the military justice system did not exist, our military members would
have their cases tried in foreign courts and be imprisoned in foreign
jails.[^33]

Finally, the military justice system is designed to fairly adjudicate
criminal cases *efficiently*.[^34] This is particularly important in a
deployed or contingency situation when a commander must expeditiously
deal with misconduct to prevent degradation of the unit's effectiveness
and cohesion. Delaying disciplinary action will invariably prejudice
good order. As Judge Everett cogently points out, "justice delayed is
justice defeated. ...In military life, where to maintain discipline, the
unpleasant consequences of offenses must be quick, certain and
vivid\--not something vague in the remote future."[^35]

# *C. The Military Justice System*

To some, "military justice is to justice as military music is to
music!"[^36] Detractors contend that our system is antiquated and in
need of dramatic change.[^37] The reality is that over the past 50
years, the military justice system has evolved into an even more fair
and effective system. The UCMJ represents a masterful piece of
legislation that balances the need for good order and discipline with
the constitutional rights afforded to all United States citizens.
Commanders are the foundation of the American military - people who make
tough decisions and ensure success. Discipline begins and ends with
commander involvement. The following discussion explains the authority
and responsibilities commanders and others exercise in the military
justice system.

# *D. A Commander's Role*

Central to the military justice system is a commander's authority and
discretion to control discipline within his or her unit.[^38] A
commander's wisdom and unshakable resolution ensures standards expected
of every military member are met by all. Marshal Maurice de Saxe, one of
the greatest French generals of the 18^th^ century, stated, "After the
organization of troops, military discipline is the first matter that
presents itself. It is the soul of armies. If it is not established with
wisdom and maintained with unshakable resolution you will have no
soldiers."[^39] Commanders at all levels are involved with every part of
the military justice system to include: directing preliminary
investigations into misconduct, evaluating the results of the
investigation, disposing of cases, preferral and referral of charges,
selecting panel members, and taking final action after the court-martial
is concluded.

# *E. Disciplinary Tools*

Although courts-martial are the most well known disciplinary option in
the military justice system, commanders have a wide range of options to
handle disciplinary problems without resorting to trial. A commander may
choose to impose administrative sanctions or nonjudicial punishment. In
deciding which disciplinary tool to employ, a commander considers more
than just the nature of the misconduct; he also evaluates the suspect's
record and weighs it against the impact of the misconduct to good order
and discipline. The commander is trusted to use his best judgment so
that the "punishment fits the crime."[^40]

*1. Administrative Actions*

The vast majority of disciplinary problems are minor in nature and do
not require a more formal action. Commanders have several options to
quickly correct these acts of minor misconduct. Short of punitive
action, an Air Force commander may choose from a wide range of responses
including, by order of seriousness, counselings, admonishments, and
reprimands (each may be oral or written).[^41] Those actions can be
taken separately or in conjunction with, or may produce, collateral
administrative consequences such as discharge from the service, demotion
(enlisted members only), delay in promotion or removal from a promotion
list, cancellation of an assignment, or establishment of an unfavorable
information file. This assortment of options allows commanders to
swiftly and efficiently deal with disciplinary infractions.

[]{.mark}

*2. Nonjudicial Punishment*

To give commanders more flexibility in handling minor offenses, Congress
has vested commanders with the authority to impose nonjudicial
punishment (NJP) under Article 15, UCMJ.[^42] NJP is commonly referred
to as an "Article 15" (or "mast" in the Navy and "office hours" in the
Marine Corps). Nonjudicial punishment serves as a middle ground in the
military justice process. It provides sanctions less onerous than a
court-martial, yet more severe than nonpunitive measures.[^43] By
definition, an Article 15 is not judicial--it is not a trial and does
not result in a federal conviction.[^44] In fact, acceptance of the NJP
is not even an admission of guilt.[^45] Even so, a member who is offered
an Article 15 has the right to consult counsel prior to accepting the
nonjudicial punishment.[^46] The military member may present evidence of
his innocence or mitigating facts surrounding the alleged misconduct.
After considering the matters presented by the accused, the commander
will determine whether the member committed the offense. If the
commander makes that determination, he then imposes an appropriate
punishment.[^47]

NJP is an indispensable tool used to maintain good order and discipline
while also promoting positive behavior changes in the member without the
stigma of a court-martial conviction.[^48] Punishments may include
reduction in rank for enlisted members, forfeiture of pay, restriction
to base, extra duties, for enlisted members correctional custody, and
reprimand. While NJP is a powerful means for a commander to respond to
minor offenses, the commander's authority is not unlimited.[^49] Under
specific circumstances,[^50] the service member has the right to refuse
the Article 15 and demand to be tried by a court-martial to have "their
day in court."[^51] Clearly, this flexibility allows a commander to
tailor a disciplinary response based on the seriousness of the
misconduct and its impact on good order. The service member benefits
because the commander can deal with small problems quickly without
having to resort to the sanctions that may result from a court-martial.

# III. FEATURES OF THE SYSTEM

# *A. Pretrial Investigations, Pretrial Confinement & Preferral of Charges*

*1. Pretrial Investigations*

After receiving information that a member may have engaged in
misconduct, the service member's commander will ensure a preliminary
inquiry is completed. Exculpatory evidence as well as inculpatory
evidence is sought.[^52] In more serious cases, the commander may seek
the assistance of Security Forces or an other investigative office―for
the Air Force, the Air Force Office of Special Investigations (AFOSI).
Once an investigation is completed, the immediate commander will receive
the report and decide upon an appropriate course of action.

*2. Pretrial Confinement*

A commander is concerned not only with the well being of the member
suspected of misconduct, but with overall community safety. If a
commander determines that a service member suspected of a crime is a
flight risk or may commit further misconduct, the commander may limit
the accused's freedom before trial. Conditions on liberty,[^53]
restriction in lieu of arrest,[^54] and pretrial confinement[^55] are
among these options. Commanders must make a careful assessment to
determine whether some form of restraint short of confinement is more
appropriate than confinement (e.g., restriction to the base).[^56]

If a commander places an individual into pretrial confinement, the
accused's rights are protected through an extensive review process.[^57]
A pretrial confinement reviewing officer will determine whether
sufficient grounds exist to continue confinement.[^58] The accused is
represented by counsel and may argue that confinement is not
warranted.[^59] The reviewing officer is completely independent and his
or her determination[^60] to release a confinee generally will be
binding upon the commander.[^61] Once confinement is ordered, it may be
terminated only by the accused's commander, the detailed military judge,
or an individual officially charged with reviewing the commander's
decision to impose the confinement.[^62] Additionally, failure to
properly conduct a pretrial confinement hearing will entitle the accused
to receive credit against any court-martial sentence that is
approved.[^63]

*3. Preferral of Charges*

As stated above, commanders have a number of disciplinary tools
available to them based upon the nature of the particular circumstances.
The Manual for Courts-Martial requires resolution of the case at the
lowest disciplinary level consistent with the seriousness of the
offense.[^64] If the accused's immediate commander believes action by
court-martial is warranted, the next step is preferring charges against
the military member.[^65] The commander has broad discretion in deciding
what charges to prefer. He may prefer both minor and major offenses
together. He should prefer all known charges at the same time.[^66] A
commander acts as the *accuser* when preferring charges,[^67] although
anyone subject to the UCMJ may serve as an accuser.[^68] The accuser
signs under oath and must have personal knowledge of or have
investigated the matters set forth in the charges.[^69]

# *B. Convening Authorities*

The authority to convene courts-martial is incident to command at
certain designated command levels. After preferral of charges, the
evidence is forwarded to a commander authorized to convene
courts-martial. Convening authorities are senior commanders, usually
colonels or general officers within the military establishment. To be a
convening authority, commanders must have demonstrated moral character,
intelligence, military bearing, and successful management skills. Most
have served for years, dedicating their lives to a military career.
Their presence ensures the system works fairly and efficiently.

After reviewing the charges and evidence, the convening authority has a
number of options. These options include: dismissing the charges,
referring the charges to a court-martial, returning the charges to the
immediate commander for a lesser disposition, forwarding the charges
with his recommendations to a higher convening authority, or directing
that further investigation take place.[^70] The convening authority's
military justice responsibility cannot be delegated to any other
officer.[^71]

Referring charges to court-martial is a straightforward process.
Following preferral of charges, the convening authority appoints the
court members and refers the case to them for adjudication.[^72] Court
members are selected by their age, education, training, experience,
length of service, and judicial temperament.[^73] They must be
independent and unbiased. Even though the convening authority convenes
the court-martial, the law prohibits him from attempting to improperly
influence or affect the outcome.[^74]

To protect the integrity of the system, military judges are also
prohibited from certain actions. To combat the danger of unlawful
command influence permeating the court-martial, the Court of Appeals for
the Armed Forces has made it clear that even the possibility of unlawful
influence will constitute grounds for overturning a conviction.[^75] The
court acknowledged Congress's intent that \"no judge will participate in
the adjudication of a case if he is not "neutral and detached."[^76] Any
relationship that casts suspicion on whether a military judge is fair or
impartial provides a basis for an accused to seek his
disqualification.[^77]

The convening authority has many ancillary powers in convening a
court-martial. Included among these responsibilities is the convening
authority's power to enter into a pretrial agreement with an
accused.[^78] The convening authority is also responsible for production
of expert witnesses.[^79] When necessary, the general court-martial
convening authority has the power to grant a military witness
immunity.[^80] Following a court-martial, the convening authority has
further discretion in ordering a rehearing or retrial.[^81] No rehearing
or retrial may take place if the member is acquitted.

If the court-martial finds an accused guilty, once sentencing is
completed, the case is returned to the convening authority for final
action.[^82] The convening authority may approve or disapprove the
court's findings of guilt or grant clemency by suspending or
disapproving a portion of the accused's sentence. This oversight gives a
military accused an additional opportunity to argue that the court's
findings should be dismissed and/or a reduction in sentence is
warranted.[^83] The convening authority may not change a finding of not
guilty or increase a punishment. It is not unusual for a convening
authority to make changes to the final action which are beneficial to
the accused. This right to clemency is unique to the military justice
system.

#### 

# *C. Courts-Martial*

Apart from popular movies or television programs, the term
"court-martial" may conjure up the 1926 court-martial of General Billy
Mitchell,[^84] or the case of Lieutenant William Calley.[^85]
Court-martial is the most serious judicial process a commander has at
his disposal for handling misconduct. In keeping with the flexibility of
the military justice system as a whole, there are three distinct levels
of court-martial: the summary court-martial, the special court-martial,
and the general court-martial.

*1. Summary Court-Martial*

A summary court-martial is the lowest forum for trial. It is designed to
dispose of offenses that merit more than nonjudicial punishment but are
not appropriate for a special or general court-martial. Only enlisted
members who consent may be tried in this forum.[^86] A single officer
presides over the hearing, renders the verdict, and if the accused is
found guilty, imposes a sentence.[^87] While the UCMJ does not *per se*
guarantee an accused representation by a defense counsel in summary
courts-martial, current Air Force practice is to provide counsel to the
accused.[^88]

The procedure for summary courts-martial generally follows the same
procedural course of a general or special court-martial. The summary
court-martial convening authority refers the charges to court.[^89] The
accused has the right to cross-examine witnesses, present evidence and
require the Government prove guilt beyond a reasonable doubt. The
summary court-martial does not apply all of the Constitutional and
procedural protections of a special or general court-martial. This is
one of the reasons why the accused must consent to the forum and why the
range of punishment in a summary court-martial is significantly
limited.[^90]

2.  *Special Court-martial*

This proceeding is an intermediate level of trial and must by convened
by a commander empowered as a special court-martial convening
authority.[^91] A special court-martial is composed of at least three
members and a military judge.[^92] The accused may be tried by members
or, by his request, military judge alone. In this forum, there is both a
trial counsel representing the interests of the government and a defense
counsel representing the accused.[^93] The government may try an officer
or enlisted accused for any noncapital offense in this forum.[^94]

A special court-martial is very similar to a civilian criminal trial in
that counsel may make opening statements, examine and cross-examine
witnesses, present evidence, and make final arguments as counsel do in
civilian trials. The military counsel appears in uniform, but the
military judge may wear the traditional judicial robe.[^95] A court
reporter transcribes the proceeding. The military rules of evidence and
rules for court-martial procedure govern special and general
court-martial proceedings. The proceedings are open to the public, but
are held outside the presence of the members.[^96] Formal arraignment
and contested motions are also held outside the presence of the members
in these so-called \"Article 39(a) sessions.\"[^97] The government
counsel has the burden to prove the elements of the crime(s) "beyond a
reasonable doubt."[^98]

Although the degree of punishment is greater than at a summary
court-martial, it is still limited. The maximum punishment that may be
adjudged in special courts-martial includes a bad conduct discharge, a
maximum of one year confinement, forfeiture of two-thirds pay for twelve
months and a reprimand.[^99] The forum limitations apply regardless of
the number of offenses or the maximum punishment authorized for the
offenses for which the accused is found guilty.

*3. General Court-Martial*

This forum is reserved for the most serious offenses and is
indistinguishable from the special court-martial except for composition
and maximum punishment. General courts-martial are composed of at least
five members with a military judge presiding.[^100] If an accused
chooses, in a noncapital case, he may be tried by a military judge
alone. This forum may impose the maximum lawful punishment for any
offense, including death.[^101]

Before charges may be referred to a general court-martial, Article 32,
UCMJ, requires a formal investigation into the evidence and
charges.[^102] The Article 32 investigation is the military's
counterpart to the civilian grand jury.[^103] Both are designed to avoid
referring baseless charges to trial. The investigating officer (IO)
inquires into the truth of the matters set forth in the charges,
considers the form of the charges, and recommends disposition of the
case in the interest of justice and discipline.[^104] The IO is a
commissioned officer.[^105] He is independent (by law) from both the
government and the defense.[^106] Any attempt by the convening authority
or the government to influence the IO's decision may itself constitute
an offense under the UCMJ.[^107] Typically, an Article 32 investigation
is open to the public.[^108] During the hearing itself, the accused is
entitled to be present with counsel.[^109] An accused may also elect to
testify and may present witnesses and offer evidence for the IO's
consideration.[^110] The investigation is designed to give the accused a
preliminary opportunity to hear the evidence against him. The accused
has an opportunity to persuade the convening authority that the charges
are baseless or that the case should be referred to a lesser
forum.[^111]

# *D. Court Participants*

*1. Legal Counsel*

The typical court-martial contains at least one detailed prosecutor,
also called the trial counsel, and one detailed defense counsel. The
trial counsel is charged with prosecuting the criminal case on behalf of
the United States[^112] and the defense counsel represents the accused
active duty member. For a general court-martial, both trial and defense
counsel are certified as competent to act as counsel under Article
27(b), UCMJ, by The Judge Advocate General.[^113] To be certified, the
attorneys must be members of the federal bar or the highest court of any
state.

Trial practice is governed by the Rules for Courts-Martial and Military
Rules of Evidence, both of which are contained in the Manual for
Courts-Martial (MCM). Among these rules are the provisions on discovery.
The MCM gives both the government counsel and the defense counsel "equal
access" to evidence.[^114] The MCM specifically provides both will have
an adequate opportunity to prepare the case and both will have equal
opportunity to talk to the witnesses and examine the evidence.[^115]
Neither counsel should impede or frustrate the good faith efforts of
opposing counsel in obtaining information. The MCM sets forth broad
discovery rights for the defense, and the Military Rules of Evidence
mandate disclosure of certain evidence by the prosecution to the defense
in advance of trial and vice versa.[^116]

In the military system, the trial counsel is charged with the
responsibility to obtain witnesses for both the government and the
defense. The witness's testimony must be relevant and necessary.[^117]
To request defense witnesses, the defense counsel or accused must submit
a request to the trial counsel requesting their presence. This request
must include a synopsis of expected testimony sufficient to meet the
standard of relevance and necessity. If the testimony meets this
standard, the government is obligated to pay the costs of producing the
witnesses. This obligation includes production of expert witnesses who
charge fees for their service.[^118]

*2. Defense counsel*

A suspect may seek the advice and assistance of defense counsel.[^119]
An Air Force member, regardless of rank or income status, may be
represented by an Air Force Area Defense Counsel (ADC), without cost, at
any stage of the process (including, as discussed below, post-trial
appeals). ADCs are officers who are entirely independent of an
installation's chain of command.[^120] The ADCs counsel and assist
members facing investigation and adverse disciplinary actions.[^121] A
military member may choose to be represented by the ADC, may hire
civilian counsel at his or her own expense, or may be represented by
both the ADC and the civilian counsel.

Every ADC has served at a base legal office before assignment to the
defense counsel position and often has extensive military justice
experience. The Judge Advocate General of the Air Force personally
appoints the attorney to this position. This selection and appointment
is made only after a thorough review of the attorney's qualifications.
Additionally, after selection, all ADCs are enrolled in on-going legal
education and training programs to further increase the level of their
trial skills. The creation of the ADC program has been a two-fold
success: one being the continued zealous advocacy on the part of
military members who are accused of misconduct; the other being the
continued preservation of justice.

*3. Circuit Counsel*

In addition to local trial and defense counsel, the Air Force employs
senior litigation specialists. These attorneys, both trial and defense
counsel, are located in five regional offices and travel throughout
their respective circuits representing the government and accused
members in complex cases. The Judge Advocate General selects attorneys
to be circuit counsel based on their trial experience and litigation
skill. In addition to this representation, circuit counsel also provide
legal training at annual conferences for local trial and defense
counsel.

*4. The Accused*

Military members do not forfeit their constitutional rights once they
join the military.[^122] Like all American citizens, service members
enjoy the fundamental protections of our Constitution. For example,
every military member has the right to be protected against unreasonable
searches and seizures,[^123] to be protected against compelled
self-incrimination,[^124] to be permitted discovery of evidence,[^125]
and to have legal counsel in all special and general
courts-martial.[^126] The Military Rules of Evidence protect these
rights by prohibiting the Government from using evidence that was
obtained by or derived from unlawful interrogations and illegal search
and seizures.[^127]

While service members enjoy most of the same protections afforded all
citizens, the unique demands of the military services require a
balancing act between military necessity and personal liberties. The
Supreme Court has examined these competing interests and has
consistently held that military personnel can be subjected to duties and
restrictions that ordinarily would be impermissible in civilian life. In
*Parker v. Levy*,[^128] the Court stated that:

> \[In the armed forces\] some restrictions exist for reasons that have
> no counterpart in the civilian community. Disrespectful and
> contemptuous speech, even advocacy of violent change, is tolerable in
> the civilian community, for it does not directly affect the capacity
> of the Government to discharge its responsibilities unless it both is
> directed to inciting imminent lawless action and is likely to produce
> such action. In military life, however, other considerations must be
> weighed. The armed forces depend on a command structure that at times
> must commit men to combat, not only hazarding their lives but
> ultimately involving the security of the Nation itself. Speech that is
> protected in the civil population may nonetheless undermine the
> effectiveness of response to command. If it does, it is
> constitutionally unprotected.[^129]

However, the power of an armed service over its members is not
unlimited. Military courts have consistently ruled that orders and
directives that only tangentially further a military objective, are
excessively broad in scope, are arbitrary and capricious, or needlessly
abridge a personal right are subject to close scrutiny and may be
invalid and unenforceable.[^130] The courts have made it clear that
while the needs of the military must be considered, service members are
still afforded constitutional protections.

From the very beginning of an inquiry or investigation into suspected
misconduct, a military suspect has greater rights against
self-incrimination than a civilian suspected of the very same
offense.[^131] Under Article 31 of the UCMJ, a military member
[suspected]{.underline} of an offense must be read his or her rights
before questioning―merely because he or she is a suspect.[^132] The
member has the right to ask for an attorney and can choose not to make a
statement to investigators. These rights are binding on both commanders
and military police.[^133]

*5. Court-Martial Panels*

Article 25, UCMJ, strictly governs the selection of court-martial panel
members. Unlike the civilian system, which depends on the availability
of jurors, the military justice system operates on a "best qualified"
basis. The convening authority selects those individuals he or she
believes to be best qualified for court-martial duty by reason of age,
education, training, experience, length of service, and judicial
temperament.[^134] The court-martial panel will be comprised of officers
unless the accused requests 1/3 of the panel be enlisted members.[^135]
Court-martial panels typically consist of members who have at least a
high school degree.[^136] Many members have bachelors, graduate, and
post-graduate degrees.

Two competing interests exist in the court-martial selection process: to
identify and select a panel of court-martial members that are competent,
fair, and impartial, while at the same time not unduly restricting the
conduct of the military mission or national security.[^137] The current
system of selection is sufficiently flexible to be applied in all
military units, locations, operational conditions, and across all armed
forces.[^138] In addition to system flexibility, the commander is in the
best position to determine whether an individual is needed for
operational matters or is available to sit on a court-martial
panel.[^139] Adequate safeguards exist in the military justice system to
ensure selection of fair and impartial court-martial panels.[^140] These
safeguards include the questioning, referred to as *voir dire*, of the
panel members by the judge and counsel regarding their fitness to sit on
the panel. Both government and defense counsel may peremptorily
challenge a panel member or may request any panel member be excused for
cause anytime during the trial.[^141] Following challenges, the
remaining members sit as the court-martial panel.[^142]

Military panels are beneficial to the accused due to their understanding
of the military environment. Military members share common experiences
within the military community. This familiarity provides the members
with an insight into the accused's actions and a level of appreciation
for the circumstances under which the accused lives and works.[^143]
Article 37, UCMJ, ensures a court-martial member is free from improper
influence in his or her decision-making.[^144]

After presentation of evidence, trial and defense counsel make final
arguments, and the members are excused to deliberate. The members vote
by secret written ballot.[^145] The military system generally convicts
or acquits by 2/3 vote of the members.[^146] If the accused is not
convicted on the charged offense or lesser included offenses, he or she
is automatically acquitted. The concern of the civilian "hung jury,"
where unanimous vote is necessary for conviction, does not exist under
the military justice system. Hung juries produce no firm outcome,
leaving the civilian accused under a cloud of doubt and leaving
prosecutors to decide whether to retry the case.

# 

*6. Military Judges*

Experienced, professional judges preside over all trials in the United
States, and the military is no different.[^147] In the Air Force,
military trial judges are appointed by The Judge Advocate General and
are organized in five geographic judicial circuits. A military judge's
only duty is to preside over courts-martial (and, on occasion, certain
administrative proceedings).[^148] Like military defense counsel and
circuit trial counsel, trial judges report through a separate, legal
chain of command. Court-martial convening authorities are not
responsible for appointing an individual judge to a particular case, nor
do they write or indorse a judge's annual performance report.[^149]

Military judges base their rulings in part on constitutional provisions,
common law, Rules for Courts-Martial, and Military Rules of Evidence.
These rules and procedures ensure an accused's rights are maintained
throughout the trial. In 1980, the Manual for Courts-Martial was amended
to include new Military Rules of Evidence (MREs).[^150] These rules are
unique to military practice in their terminology and specialized use in
military practice. Applicable to all courts-martial, the MREs are for
the most part based upon the Federal Rules of Evidence.[^151] As the
federal rules change, they are incorporated into the MREs unless the
President takes action to the contrary.[^152] These rules also apply to
all Article 39(a) sessions, fact finding proceedings ordered on review,
proceedings in revision, and contempt proceedings.[^153]

# *E. Review of Courts-Martial*

*1. Clemency*

As discussed before, if an accused is convicted of an offense, the
military system offers the accused an unparalleled opportunity for
clemency. Before a convening authority approves a court-martial result,
the accused and counsel may submit matters challenging the outcome of
the trial and/or requesting clemency as to sentence.[^154] The convening
authority may, for any reason, disapprove any or all of the findings and
suspend or reduce the sentence.[^155] He may not change an acquittal or
increase a sentence.

*2. The Appeal*

The military system offers the accused extraordinary access to the
appeals process. All courts-martial receive a post-trial review. Every
trial that results in a sentence that includes a punitive discharge or
confinement for a year or more is automatically appealed to the first
level of appellate military court, the service Courts of Criminal
Appeals.[^156] An Air Force accused is entitled to representation free
of charge by a judge advocate assigned to the Appellate Defense Division
in Washington, D.C. Like at the trial level, an accused may also hire a
civilian lawyer at his or her own expense to operate alongside the
military counsel. The case may be reviewed further by the highest court
in the military system, the Court of Appeals for the Armed Forces. This
court is constituted under Article I of the Constitution. It is
comprised of five civilian judges appointed for 15-year terms.[^157]
Military accused may also petition the United States Supreme Court to
review their cases.[^158] This system of appellate courts provides
significant oversight of the court-martial process, ensuring procedural
and substantive fairness. In order to appeal a criminal conviction, a
defendant must have a transcript of the trial court proceeding. In the
military system, a record is prepared in every case and provided to the
accused free of charge.

*3. "De novo" Review*

Congress has granted the service Courts of Criminal Appeals the
authority to review the findings of courts-martial "de novo," that is,
anew or for a second time.[^159] Such authority permits the Air Force
Court of Criminal Appeals to determine, based on the facts in the
record, that the evidence was not sufficient to convict the accused.
They may even overturn the results of the court-martial on their own
volition. This safeguard further ensures that an accused service member
receives a fair and impartial trial.

# IV. CONCLUSION: A "Justice" Based System

The American Military Justice system is founded in the concept that
world-wide deployment of large numbers of military personnel requires a
flexible, separate jurisprudence capable of operating in times of peace
and conflict.[^160] Fortunately, as American troops continue serving the
world over, a comprehensive system of justice that balances the rights
of the accused with the necessity of military operations travels with
them. It is vital that the military justice system is understood, not
only by American society, but by our allies as well. Despite attempts to
portray the military justice system as being out of touch with modern
legal thought, the system has withstood the test of time, both in terms
of constitutional challenges and practical application. For the last 50
years, the military justice system has served the United States well and
will continue to do so into the future.

[^1]: ^^ *Lt Col James B. Roan, USAF, is the Deputy Chief, Military
    Justice Division, Air Force Legal Services Agency, Bolling AFB,
    District of Columbia; Bachelor of Business Administration (cum
    laude), 1986, University of Oklahoma; Masters of Business
    Administration, 1989, University of North Dakota; Juris Doctor,
    1993, Washington University in St Louis.*

    *\*\* Capt Cynthia Buxton, USAF, is the Deputy Chief, Joint Service
    Policy and Legislation Branch, Military Justice Division, Air Force
    Legal Services Agency, Bolling AFB, District of Columbia; Bachelor
    of Science (cum laude), 1992, University of Nebraska; Juris Doctor,
    1995, Creighton University in Omaha.*

[^2]: General George Washington, Letter of Instructions to the Captains
    of the Virginia Regiments (29 July 1759).

[^3]: *See* Act of March 5, 1950, ch. 169, 81^st^ Cong., 2d Sess.

[^4]: MCM, para. 3, at I-1.

[^5]: These unique responsibilities include overseeing the health,
    safety, welfare, morale, and efficiency of those under his command.
    United States v. Harris*,* 5 M.J. 44, 59 (CMA 1978).

[^6]: The United States has three major criminal justice systems; the
    individual state system, the federal system, and the military
    justice system.

[^7]: U.S. Const. art. I, § 8. The Supreme Court has afforded great
    "deference to the determination of Congress made under its authority
    to regulate the land and naval forces." Weiss v. United States, 510
    U.S. 163, 177 (1944).

[^8]: U.S. Const. art. II, § 2. Historically, two civilian authorities
    govern the military: Congress and the President.

[^9]: Codified in title 10 USC §§ 801 - 941.

[^10]: The 2000 MCM incorporates all Executive Orders through 6 Oct 1999
    (EOs 12473, 12484, 12550, 12586, 12708, 12767, 12888, 12936, 12960,
    13086, and 13140). Although not currently drafted into the 2000
    edition of the MCM, Executive Order 13262 was signed on 11 April
    2002 and is applicable to current court practice. The MCM includes
    the Preamble, the Rules for Courts-Martial, the Military Rules of
    Evidence, the punitive articles, and nonjudicial punishment
    procedure (hereinafter NJP).

[^11]: 10 U.S.C. §§ 866 - 869 (1998) authorizes review of military
    courts-martial by appellate courts.

[^12]: For a more detailed history of the American military justice
    system, *see* John Lurie, Arming Military Justice, The Origins of
    the United States Court of Military Appeals 1775-1950, 130-149
    (1992); *see also* William T. Generous, Jr., Swords and
    Scales―Development of the Uniform Code of Military Justice (1973).

[^13]: America's first military legal code was enacted in June 1775.
    *See* William Winthrop, Military Law and Precedents 12 (2d ed.
    1920). Congress enacted a set of legal guidelines for the behavior
    of the forces, following an English practice in effect since 1689
    when Parliament wrested from the Crown the power to legislate for
    the military and enacted the first Mutiny Act. The Army Lawyer: A
    History of the Judge Advocate General's Corps, 1775-1975 (Reprinted
    1993).

[^14]: *See generally* Edward M. Byrne, Military Law 2-6 (3d ed. 1981).

[^15]: Court-martial statistics for this period may be misleading.
    Commanders considered courts-martial appropriate for all levels of
    misconduct. It was not uncommon for active duty members to be
    court-martialed for minor disciplinary infractions several times and
    then returned to the front-line of combat. *See* Capt John T.
    Willis, *The United States Court of Military Appeals, Its Origin,
    Operation, and Future*, 55 Mil. L. Rev. 39 (1972). The number of
    courts-martial tried during World War II amounted to one third of
    all criminal cases tried in the nation during the same period. *See*
    William T. Generous, Jr., Swords and Scales--The Development of the
    Uniform Code of Military Justice (1973) *citing* Judge Advocate
    General, Congressional Floor Debates on the Uniform Code of Military
    Justice (1950).

[^16]: Rear Admiral Robert J. White, *The Background and the Problem*,
    [St John's L. Rev.]{.smallcaps} 35 (1961). *See generally* John
    Lurie, Arming Military Justice, The Origins of the United States
    Court of Military Appeals 1775-1950, 128-149 (1992).

[^17]: The Army Lawyer, *supra* note 12, at 169. *See generally* Index
    and Legislative History to the Uniform Code of Military Justice, 3
    vols (1985). Indexed and Compiled by the Army Court of Military
    Review.

[^18]: Many proponents contributed to the creation and development of
    the Uniform Code of Military Justice (hereinafter UCMJ). Some of
    these noteworthy individuals and groups include (but are not limited
    to) Arthur Vanderbilt, Dean of New York University, chairman of the
    Vanderbilt Commission; Arthur J. Keefe, professor of law at Cornell
    University and Chairman of the Keefe Committee; Felix Larkin, member
    of the Keefe Committee; the Association of the Bar of New York
    (1948), *Report on Pending Legislation for the Revision of the Army
    Court-Martial System* (February 1948); Senator Charles Elston of
    Ohio, proponent of the *Elston Act* (June 1948); and Senator James
    Kern of Missouri.

[^19]: \"We were convinced that a Code of Military Justice cannot ignore
    the military circumstances in which it must operate but we were
    equally determined that it must be designated to administer
    justice.\" *Hearings on H.R. 2498 Before a Subcomm. Of the House
    Armed Services Comm.*, 81st Cong., 1st Sess., at 606 (1949)
    (statement of Professor Edmund G. Morgan).

[^20]: Lurie, *supra* note 15.

[^21]: Brigadier General (Retired) John S. Cooke, *Introduction:
    Fiftieth Anniversary of the Uniform Code of Military Justice
    Symposium Edition*, 165 [Mil. L. Rev]{.smallcaps}. 1 (2000).

[^22]: Robinson O. Everett, Military Justice in the Armed Forces of the
    United States (The Telegraph Press 1956).

[^23]: *See, e.g.,* Parker v. Levy, 417 U.S. 733, 743 (1974).

[^24]: United States ex rel. Toth v. Quarles*,* 350 U.S. 11, 17 (1955).

[^25]: *In re* Grimley, 137 U.S. 147, 153 (1890).

[^26]: Orloff v. Willoughby*,* 345 U.S. 83, 94 (1953).

[^27]: R.C.M. 201(d)(1). Courts-Martial have exclusive jurisdiction of
    purely military offenses.

[^28]: Solorio v. United States, 483 U.S. 435 (1987) (That civil courts
    are "ill equipped to establish policies regarding matters of
    military concern is substantiated by the confusion evidenced in
    military court decisions attempting to apply the service connection
    approach."); Burns v. Wilson, 346 U.S. 137, 140 (1953) (plurality
    opinion) ("The rights of men in the armed forces must perforce be
    conditioned to meet certain overriding demands of discipline and
    duty, and the civil courts are not the agencies which must determine
    the precise balance to be struck in this adjustment. The Framers
    expressly entrusted that task to Congress.")

[^29]: Although the civilian criminal system was not established to
    effectively deal with military members committing uniquely military
    offenses, military members may be tried by the civilian criminal
    system for the commission of traditional offenses. R.C.M. 201(d)(2).
    An act or omission which violates both the UCMJ and local criminal
    law, foreign or domestic, may be tried by court-martial, or by a
    proper civilian tribunal, foreign or domestic.

[^30]: R.C.M. 202; *see also* Art. 2, Persons subject to the code, UCMJ.
    The power granted Congress \"To make Rules\" to regulate \"the land
    and naval Forces\" is to be construed as restricting court-martial
    jurisdiction to persons who have a relationship with the armed
    forces. Quarles, s*upra* note 23, at 15.

[^31]: As Judge Everett asks, "how would US civilian courts be able to
    operate overseas? How would a jury or grand jury be obtained? What
    civilian judges would be chosen to mete out justice on the
    frontlines in Korea, where the witnesses might be stationed? If no
    civilian jury were provided, would accused persons be willing to
    entrust their fates to one man, even though he was a civilian?"
    *Supra* note 21, at 4.

[^32]: Solorio v. United States, 483 U.S. 435, 439 (1987). The Supreme
    Court rejected the "service-connection" requirement before
    jurisdiction could attach for court-martial purposes. The practical
    effect of the holding is that military members are subject to the
    UCMJ and may be tried for violations whether the crime occurred on
    or off duty, on or off the military installation.

[^33]: For example, the North Atlantic Treaty Organization Status of
    Forces Agreement delineates criminal jurisdiction between the
    sending states and receiving states. The German government has
    agreed to a general waiver of their jurisdiction due to the United
    States military's proven ability to handle disciplinary problems
    through the UCMJ. North Atlantic Treaty Organization, Status of
    Forces Agreement, Supplementary Agreement, Art. 19, para. 1.
    effective 1 Jul 63 (TIAS 5351).

[^34]: In 1999, the federal civilian criminal system averaged over nine
    months (over 270 days) from the time charges were filed to the time
    the case was concluded. BUREAU OF JUSTICE, COMPENDIUM of FEDERAL
    JUSTICE STATISTICS (1999). In 1999, the Air Force military justice
    system averaged 126.6 days for general courts-martial from preferral
    of charges until case completion and 151.7 days from preferral until
    final action by the convening authority. *Statistics* maintained by
    the Air Force Military Justice Division (1999) (on file).

[^35]: Everett, *supra* note 21, at 4.

[^36]: Robert Sherril, Military Justice is to Justice as Military Music
    is to Music (Harper & Row 1970).

[^37]: Michael I. Spak & Jonathon P. Tomes, *Courts-Martial: Time to
    Play Taps?*, 28 SW. U. L. [Rev]{.smallcaps} 481 (1999). The authors
    argue that court-martial jurisdiction should be limited to service
    members serving overseas and during wartime.

[^38]: The commander serves as the keystone for the operation of the
    military criminal process. *See* David A. Schlueter, Military
    Criminal Justice Practice and Procedure (5^th^ ed. 2000).

[^39]: Marshal Maurice de Saxe (1696-1750), My Reveries Upon the Art of
    War (published posthumously in 1757).

[^40]: The Supreme Court has held that great deference must be given to
    commanders in exercising their professional judgment, even when
    Constitutional rights are infringed. Goldman v. Weinberger, 475 US
    503, 507 (1986).

[^41]: Air Force Instruction (AFI) 36-2907, Chapter 3, Administrative
    Counselings, Admonitions, and Reprimands (1 May 1997).

[^42]: Article 15 provides a means whereby military commanders may
    impose nonjudicial punishment for minor infractions of discipline.
    Its use permits the services to reduce substantially the number of
    courts-martial for minor offenses, which result in stigmatizing and
    impairing the efficiency and morale of the person concerned. See
    generally S. Rep. No. 1911, 87^th^ Cong., 2d Sess., U.S.Code Cong. &
    Ad. News 2379, 2380-82 (1962).

[^43]: *See* David A. Schlueter, Military Criminal Justice Practice and
    Procedure 114 (5^th^ ed. 2000).

[^44]: "Since the punishment is nonjudicial, it is not considered a
    conviction of a crime and in this sense has no connection with the
    military court-martial system.\" S. Rep. No. 1911, 87th Cong., 2nd
    Sess. 2, reprinted in 1962 U.S. Code Cong. & Admin. News 2379, 2380.

[^45]: Air Force Instruction (AFI) 51-202, Nonjudicial Punishment, para.
    4.9.

[^46]: Air Force policy is to provide legal counsel to an individual
    receiving nonjudicial punishment. *Supra* at 58, para. 4.7. The
    other services have different policies as to when legal counsel is
    authorized.

[^47]: The range of punishment is limited by both the commander's and
    service member's rank. For example, a captain may only impose
    forfeitures of not more than seven days pay, whereas a lieutenant
    colonel may take forfeitures of 30 days. This ensures that more
    extensive punishment is only imposed by more experienced officers.
    *See generally* Part V, MCM, for authorized punishments.

[^48]: MCM, Part V, para 1(c).

[^49]: MCM, Part V, para 5b, Authorized maximum punishments.

[^50]: MCM, Part V, para 3, Right to demand trial.

[^51]: Art.15(a), UCMJ. A service member has the right to decline
    nonjudicial punishment and demand trial by court-martial unless the
    individual is attached to or embarked upon a vessel.

[^52]: Exculpatory evidence tends to establish a criminal defendant's
    innocence while inculpatory evidence tends to show one's involvement
    in a crime. *See* Black's Law Dictionary 577-8 (7^th^ ed. 1999).

[^53]: R.C.M. 304 (a)(1). Orders directing a person to do or refrain
    from doing specified acts.

[^54]: R.C.M. 304(a)(2). Moral restraint of a person by oral or written
    orders directing the person to remain within specified limits. The
    person can usually perform full military duties. R.C.M. 304(a)(3).
    Arrest in military practice is a form of moral, as opposed to
    physical restraint. An individual under arrest may be required to
    perform full military duties but may be required to take part in
    routine duties. This form of restraint is generally more confining
    than restriction.

[^55]: R.C.M. 304(a)(4). Physical restraint imposed by order of
    competent authority.

[^56]: R.C.M. 304(h)(2)(B)(iv) requires the commander to direct a
    prisoner's release from pretrial confinement unless the commander
    believes upon probable cause, that is, upon reasonable grounds, that
    less severe forms of restraint are inadequate.

[^57]: R.C.M. 304 and R.C.M. 305 detail the extensive procedural
    requirements necessary to confine a service member prior to trial. A
    probable cause determination must be made within 48 hours after
    imposition of confinement. Within 72 hours, the commander must
    prepare a written memorandum stating the reasons for continued
    confinement. Pretrial confinement is subject to judicial review once
    the charges have been referred to trial. *See* County of McLaughlin
    v. Riverside, 111 S. Ct. 1661, (1991).

[^58]: R.C.M. 305(i)(2). No later than 7 days after confinement begins,
    an independent review must be conducted.

[^59]: R.C.M. 305(f). "...military counsel shall be provided to the
    prisoner."

[^60]: R.C.M. 305(h)(2)(B). Any person subject to trial by court-martial
    may be confined prior to trial if there is both probable cause and
    necessity. Probable cause to order pretrial confinement exists when
    there is a reasonable belief that an offense triable by
    court-martial has been committed, the person confined committed it,
    and confinement is required by the circumstances.

[^61]: Courtney v. Williams**,** 1 M.J. 267, 271 (C.M.A. 1976). "We
    believe, then, that a neutral and detached magistrate must decide
    more than the probable cause question. A magistrate must decide if a
    person could be detained and if he should be detained. The
    consequences of detention are too important to require less."

[^62]: R.C.M. 305(g).

[^63]: R.C.M. 305(k). Such credit shall be computed at the rate of one
    day of credit for each day of confinement. The military judge may
    order additional credit for each day of pretrial confinement that
    involves an abuse of discretion or unusually harsh circumstances.
    See United States v. Allen, 17 M.J. 126 (C.M.A. 1984) and United
    States v. Mason, 19 M.J. 274 (C.M.A. 1985).

[^64]: R.C.M. 306(b).

[^65]: Art. 30, UCMJ. *See also* R.C.M. 307(a). Common Air Force
    practice is for the immediate commander to notify the member of the
    charges at this stage of the proceedings.

[^66]: R.C.M. 307(c)(4).

[^67]: Art 1(9), UCMJ; Appendix 2 (Glossary). Persons serving as
    accusers are thereafter precluded from acting in a variety of roles;
    i.e., convening authority, pretrial investigating officer, trial
    counsel, defense counsel, interpreter, reporter, escort, bailiff,
    clerk, or orderly. *See also* R.C.M. 405(d)(1).

[^68]: The accuser is any person with personal knowledge of the charges
    who believes they are true in fact. *Id*.

[^69]: R.C.M. 307(b)(1); R.C.M. 307(b)(2).

[^70]: *See generally* R.C.M. 403.

[^71]: R.C.M. 504(b)(4).

[^72]: Art. 25(d)(2), UCMJ.

[^73]: "The Uniform Code of Military Justice Art. 25(d)(2) states that
    the members should be selected on a \"best qualified\" basis,
    examining age, education, training, experience, length of service,
    and judicial temperament. However, once the defense comes forward
    and shows an improper jury selection, the burden is upon the
    government to demonstrate that no impropriety occurred." United
    States v. Roland, 50 M.J. 66, 69 (CAAF 1999).

[^74]: Art. 37(a), UCMJ. No person subject to this chapter may attempt
    to coerce or, by any unauthorized means, influence the action of a
    court-martial or any military tribunal or any member thereof.

[^75]: United States v. Osburn, 33 M.J. 810, 812 (AFCMR 1991). As we
    noted in our earlier decision, unlawful command influence can be
    either actual or apparent, United States v. Johnson, 14 U.S.C.M.A.
    548, 34 C.M.R. 328 (1964), and in either form it is \"the mortal
    enemy of military justice.\" United States v. Thomas, 22 M.J. 388,
    393 (C.M.A. 1986), cert. denied, 479 U.S. 1085, (1987)); United
    States v. Biagase, 50 M.J. 143 (CAAF 1999) Unlawful command
    influence is an error of constitutional dimension. United States v.
    Rivers, 49 M.J. 434, 443 (CAAF 1998)

    > "Unlawful command influence is the mortal enemy of military
    > justice. If the target of unlawful command influence is a court
    > member or the military judge, then it violates the accused\'s
    > right to an impartial forum. If unlawful command influence is
    > directed at prospective witnesses to intimidate them from
    > testifying, it violates an accused\'s right to have access to
    > favorable evidence in violation of the Sixth Amendment and Art.
    > 46, UCMJ. Where unlawful command influence is exercised, the court
    > may not affirm findings and sentence unless it is satisfied beyond
    > a reasonable doubt that the findings and sentence are not affected
    > thereby." *Id*.

[^76]: United States v. Kincheloe, 14 M.J. 40, 48 (C.M.A. 1982).
    Inherent in any judge\'s role are the requirements of impartiality
    and basic fairness to the parties. Military justice is firmly
    committed to the proposition that the court\'s actions and
    deliberations must not only be untainted, but must also avoid the
    very appearance of impurity.

[^77]: United States v. Graf, 32 M.J. 809, 811 (NMCMR 1990) ("any
    relationship that casts suspicion on whether a military judge is
    fair or impartial provides a basis for an accused to seek his
    disqualification.") R.C.M 902(b) identifies specific circumstances
    that are grounds for mandatory disqualification or recusal of
    military judges. R.C.M. 902(a) also provides for disqualification
    and recusal in more general terms, that is, when a military judge
    determines that under the circumstances of the case before him, if
    the facts were known by a reasonable man, his impartiality might
    reasonably be questioned. A military judge\'s denial of a challenge
    against him is reviewable for abuse of discretion. United States v.
    Allen, 31 M.J. 572 (N.M.C.M.R. 1990). Furthermore, Art. 26 and Art.
    66, when read in conjunction with Art. 37, UCMJ, as enforced by Art.
    98, UCMJ, provide both the accused and the military judge with a
    mechanism to bring to light, within the public forum of a
    court-martial, an attack on the military judge\'s independence, or
    lack thereof, due to unlawful command influence--the perniciousness
    of which is the same whether it be direct or indirect. United States
    v. Hagen, 25 M.J. 78 (C.M.A. 1987), cert. denied, 484 U.S. 1060,
    (1988).

[^78]: R.C.M. 705. An accused and the convening authority may enter into
    a pretrial agreement. The accused will plead guilty or waive certain
    rights in return for some specified relief from the convening
    authority.

[^79]: R.C.M. 703(d). When the employment at Government expense of an
    expert is considered necessary by a party, the party shall, in
    advance of employment of the expert, and with notice to the opposing
    party, submit a request to the convening authority to authorize
    employment and to fix the compensation for the expert.

[^80]: R.C.M. 704(c), Discussion. Only general court-martial convening
    authorities are authorized to grant immunity. R.C.M. 704(a),
    Discussion. Immunity ordinarily should be granted only when
    testimony or other information from the person is necessary to the
    public interest, including the needs of good order and discipline,
    and when the person has refused or is likely to refuse to testify or
    provide other information on the basis of the privilege against
    self-incrimination.

[^81]: R.C.M. 1107(d)(1)(A). The convening authority may in his
    discretion order a rehearing as to some or all offenses which
    findings of guilty were entered or as to the sentence only.

[^82]: *See generally* R.C.M. 1107.

[^83]: R.C.M 1107(d)(1).

[^84]: General Mitchell, a strong advocate of air power, was tried and
    convicted by a General Court-Martial for being critical of War
    Department policies (1926).

[^85]: Accused of killing unarmed Vietnamese civilians in the village of
    My Lai, Republic of South Vietnam, Lt Calley was convicted by
    general court-martial in 1973. United States v. Calley, 22 C.M.A.
    534, 48 C.M.R. 19 (1973).

[^86]: The right to object to trial by summary court-martial must be
    exercised prior to arraignment. Art. 20, UCMJ.

[^87]: The convening authority designates an officer to sit as the
    summary court-martial. This officer need not be a lawyer, but should
    be of judicial temperament and further qualified because of age,
    education, training, and experience. See R.C.M. 1301(a). These
    qualifications are implied by Art. 25(d)(2), UCMJ.

[^88]: Art. 27, UCMJ, requires detailed defense counsel for only general
    and special courts-martial. However, Air Force Instruction (AFI)
    51-201, paragraph 5.2.2.4, Administration of Military Justice (Oct
    1997) requires defense counsel be made available to the accused in
    summary courts-martial as well. *See also* Lieutenant Colonel
    Michael H. Gilbert, *Summary Courts-Martial: Rediscovering the
    Spumoni of Military Justice,* 39 A.F. Law Rev. (1996).

[^89]: Art. 24, UCMJ sets out the requirements for who may convene
    summary courts-martial.

[^90]: Art. 20, UCMJ, limits the jurisdiction of a summary court martial
    to confinement to no more than one month, hard labor without
    confinement to no more than 45 days, restriction to specified limits
    for no more than two months and forfeiture of no more than
    two-thirds pay for one month.

[^91]: Art. 23, UCMJ. Special court-martial convening authorities are
    typically commanding officers of a district, garrison, fort, camp,
    station, Air Force base, auxiliary air field, or other place where
    members of the Army or Air Force are on duty.

[^92]: Art. 19, UCMJ, defines the jurisdiction of a special
    court-martial. A minimum of three members must be detailed to the
    court-martial panel.

[^93]: Counsel in military courts-martial are certified as competent to
    act as counsel under Article 27(b), UCMJ, by The Judge Advocate
    General. To be certified, the attorneys must be members of the
    federal bar or the highest court of any state.

[^94]: Art 34, UCMJ.

[^95]: In the Army, Air Force and Coast Guard, the judges wear black
    judicial robes, although Navy and Marine judges still appear in
    their military uniform. See Uniform Rules of Practice before Air
    Force Courts-Martial, Rule 4.3 (May 2000).

[^96]: Art. 39, UCMJ.

[^97]: At the arraignment portion of the Article 39(a) session, the
    accused must state on the record his plea, choice of counsel, and
    the forum to decide his case. *Id.*

[^98]: R.C.M. 918(c). Findings may be based on direct or circumstantial
    evidence. Only matters properly before the court-martial on the
    merits of the case may be considered. A finding of guilty on any
    offense may be reached only when the factfinder is satisfied that
    guilt has been proved beyond a reasonable doubt.

[^99]: R.C.M. 201(f)(2)(B) and R.C.M. 1103(b)(2) has been amended by
    Executive Order 13262 to implement changes to Article 19, UCMJ (10
    U.S.C. 819) legislated in section 577 of the National Defense
    Authorization Act for Fiscal Year 2000, Public Law No. 106-65, 113
    Stat. 512 (1999) increasing the jursidictional maximum punishment at
    special courts-martial to one year confinement and forfeitures of
    2/3 pay for 12 months.

[^100]: For a capital case referred to a general court-martial there
    must be at least twelve members detailed to the panel (for offenses
    committed after 31 Dec 02). See National Defense Authorization Act
    for Fiscal Year 2001, Bill S. 1438, §§ 106 - 398.

[^101]: Art. 18, UCMJ, establishes the jurisdiction of general
    courts-martial.

[^102]: Art. 32, UCMJ. No charge or specification may be referred to a
    general court-martial for trial until a thorough and impartial
    investigation of all the matters set forth therein has been made.
    *See also* R.C.M. 405(a).

[^103]: By its express terms, the Fifth Amendment right to grand jury
    indictment is inapplicable to the armed forces. "No person shall be
    held to answer for a capital, or otherwise infamous, crime, unless
    on a presentment or indictment of a Grand Jury, except in cases
    arising in the land or naval forces, or in the Militia, when in
    actual service, in time of War, or public danger..." U.S. Const.
    Amend. V.

[^104]: R.C.M. 405(a), Discussion.

[^105]: The discussion to R.C.M. 405(d)(1) states the Investigating
    Officer should be an officer in the grade of major or lieutenant
    commander or higher or one with legal training.

[^106]: U.S. v. Payne, 3 M.J. 354, 355 (CMA 1977).

[^107]: *See* Art. 37 and Art. 98, UCMJ.

[^108]: R.C.M. 405(h)(3). "Access by spectators to all or part of the
    proceedings may be restricted or foreclosed in the discretion of the
    commander who directed the investigation or the investigating
    officer." The discussion after the rule says, \"Ordinarily the
    proceedings of a pretrial investigation should be open to the
    public.\" In San Antonio Express-News v. Morrow, 44 M.J. 706 (CMA
    1996), the Court of Military Appeals found a presumption in favor of
    open hearings.

[^109]: United States v. Craig, 22 C.M.R. 466 (A.B.R. 1956), aff'd, 8
    U.S.C.M.A. 28, 24 C.M.R. 28 (1957). (The investigating officer must
    allow the defense to examine all matters considered by the
    investigation officer, without exception).

[^110]: Art. 32(b), UCMJ, "The accused shall be advised of the charges
    against him and of his right to be represented at that investigation
    by counsel... . At that investigation, full opportunity shall be
    given to the accused to cross-examine witnesses against him if they
    are available and to present anything he may desire in his own
    behalf, either in defense or mitigation."

[^111]: *See* David A. Schlueter, Military Criminal Justice Practice and
    Procedure 324 (5^th^ ed. 2000).

[^112]: Article 38(a), UCMJ; R.C.M. 502(d)(5). The trial counsel shall
    prosecute cases on behalf of the United States and shall cause the
    record of trial of such cases to be prepared.

[^113]: Art. 27, UCMJ. In the case of special court-martial, the accused
    shall be afforded the opportunity to be represented at the trial by
    counsel having the qualifications stated above unless counsel having
    such qualifications cannot be obtained on account of physical
    conditions or military exigencies.

[^114]: Art. 46, UCMJ, states that the trial counsel, the defense
    counsel, and the court-martial shall have equal opportunity to
    obtain witnesses and other evidence.

[^115]: R.C.M. 701(c). *See* United States v. Eshalomi, 23 MJ 12, 24
    (CMA 1986).

[^116]: R.C.M. 701, 914. *See also* MRE 304(d)(1), 311(d)(1), 321(c).

[^117]: R.C.M. 703(c)(1).

[^118]: R.C.M. 703(b)(1). In United States v. Ndanyi, 45 M.J. 315, 319
    (CAAF, 1996), the Court of Appeals for the Armed Forces said "it is
    well-established that an accused service member has a limited right
    to expert assistance at government expense to prepare his defense."

[^119]: A civilian suspect must either pay for that representation or
    prove, generally once charges already have been brought, that she is
    indigent and should have court-appointed counsel. *See* Gideon v.
    Wainwright, 372 U.S. 335 (1963).

[^120]: Air Force Legal Services Agency Operating Instruction 1, A*ir
    Force Military Defense Counsel Charter* (22 June 1998).

[^121]: Air Force Manual 51-204, *United States Air Force Judiciary,* 4
    (1 July 1995).

[^122]: Rostker v. Goldberg, 453 U.S. 57 (1981). Congress is not free to
    disregard the Constitution when it acts in the area of military
    affairs. In that area, as any other, Congress remains subject to the
    limitations of the Due Process Clause, but the tests and limitations
    to be applied may differ because of the military context. *See also*
    Courtney v. Williams, 1 M.J. 267, 270 (CMA 1976).

[^123]: United States v. Ezell, 6 M.J. 307 (CMA 1979). The protections
    of the Fourth Amendment and, indeed, the entire Bill of Rights, are
    applicable to the men and women serving in the military services of
    the United States unless expressly or by necessary implication they
    are made inapplicable.

[^124]: United States v. Bubonics, 45 M.J. 93 (CAAF 1996). If, instead,
    the maker\'s will was overborne and his capacity for
    self-determination was critically impaired, use of his confession
    would offend due process. The burden in this regard is on the
    Government, as the proponent of admission of the evidence, to prove
    by a preponderance of the evidence that the confession was
    voluntary.

[^125]: R.C.M. 703; United States v. Morris, 52 M.J. 193 (CAAF 1999).

[^126]: Art. 27, UCMJ; R.C.M. 401(b).

[^127]: *See generally* M.R.E. 301 - 321.

[^128]: 417 U.S. 733 (1974).

[^129]: *Id.*, at 758.

[^130]: United States v. Green, 22 MJ 711 (ACMR 1986). In United States
    v. Martin, 5 CMR 102 (1952), the Court of Military Appeals set forth
    the seminal test for assessing the legality of an order or
    regulation: All activities which are reasonably necessary to
    safeguard and protect the morale, discipline and usefulness of the
    members of a command and are directly connected with the maintenance
    of good order in the services are subject to the control of the
    officers upon whom the responsibility of the command rests.

[^131]: The Supreme Court celebrated the Miranda decision, which gave
    civilians the right to remain silent or ask for an attorney in 1966,
    fully 15 years after Congress enacted Article 31 into federal law.
    M.R.E. 305; Miranda v. Arizona, 384 U.S. 439 (1966). *See* Major
    General Jack L. Rives and Major Steven J. Ehlenbeck*, Civilian
    Versus Military Justice In the United States: A Comparative
    Analysis,* A.F. L. Rev., this volume, for a comparison between the
    civilian and military justice systems.

[^132]: Art. 31(b), UCMJ, reads: "No person subject to this chapter may
    interrogate, or request any statement from an accused or a person
    suspected of an offense without first informing him of the nature of
    the accusation and advising him that he does not have to make any
    statement regarding the offense of which he is accused or suspected
    and that any statement made by him may be used as evidence against
    him in a trial by court-martial."

[^133]: M.R.E. 301(f). *See* United States v. Jordan*,* 38 M.J. 346
    ("Once warnings have been given, the subsequent procedure is clear.
    If the individual indicates in any manner, at any time prior to or
    during questioning, that he wishes to remain silent, the
    interrogation must cease.").

[^134]: Art. 25(d)(2), UCMJ. Members should be selected on a \"best
    qualified\" basis, examining age, education, training, experience,
    length of service, and judicial temperament. However, once the
    defense comes forward and shows an improper jury selection, the
    burden is upon the government to demonstrate that no impropriety
    occurred. United States v. Roland, 50 M.J. 66 (CAAF 1999).

[^135]: An enlisted accused has the absolute right to request enlisted
    members on his court-martial panel. United States v. McClain, 22
    M.J. 124 (CMA 1986).

[^136]: Air Force Instruction (AFI) 36-2002, Attachment 2, para. 2.1.5.
    (1999). Ninety-nine percent of all...enlistments must be high school
    graduates or higher.

[^137]: *Report on the Method of Selection of Members of the Armed
    Forces to Serve on Courts-Martial*, DOD Joint Service Committee on
    Military Justice, Aug. 1999, at 8.

[^138]: *Id.* at 46.

[^139]: *Id.* at 44.

[^140]: These safeguards include Article 37, UCMJ, Mil. R. Evid. 606(b),
    voir dire, and remedial action by the trial and appellate courts.
    *Id.* at 46.

[^141]: R.C.M. 912(f)(2).

[^142]: Art. 41, UCMJ.

[^143]: Judge Everett used the following example to show the importance
    of having members with military experience: "in a trial for
    dereliction of duty \[for example\], a court of military persons
    might be much better qualified by experience to understand the
    nature of the duties in which an accused supposedly had been
    derelict" than would a jury of civilians. Everett, *supra* note 21
    at 5.

[^144]: Art. 37, UCMJ. Any attempts to coerce or, by lawful means,
    influence the action of a court-martial or any member involved are
    criminal.

[^145]: R.C.M. 921(c); *see also* R.C.M.1006(d).

[^146]: Unanimous verdicts are not constitutionally required. Johnson v.
    Louisiana, 406 U.S. 356 (1972) (upholding Louisiana statute allowing
    conviction by three-fourths majority); Apodaca v. Oregon*,* 406 U.S.
    404 (1972) (upholding Oregon\'s ten-of-twelve majority rule).
    Moreover, \"the right to trial by jury guaranteed by the Sixth
    Amendment is not applicable to trials by courts-martial or military
    commissions.\" Whelchel v. McDonald, 340 U.S. 122 (1950). \"The
    constitution of courts-martial, like other matters relating to their
    organization and administration is a matter appropriate for
    congressional action.\" *Id.* See also Mendrano v. Smith, 797 F.2d
    1538, 1544 (10th Cir. 1986) (\"Statements by the \[Supreme\] Court
    and the courts of appeals reflect the universal view that members of
    the military have no right to jury trial in court-martial
    proceedings.\"). The same two-thirds holds for sentencing except
    that three-fourths are required for sentencing if the accused is to
    be confined for more than ten years and a unanimous vote is required
    for sentencing in a capital case.

[^147]: The military judge at a special or general court-martial acts as
    the presiding officer. He conducts pretrial sessions at which a
    defendant is arraigned and pleas are entered. He rules on all legal
    questions and he instructs the members on the laws and procedures to
    be followed in the case. R.C.M. 801(a). When a military judge
    presides over a court-martial composed of panel members, the members
    decide guilt or innocence and, when necessary, impose sentence.
    R.C.M. 921, 1006. When a military judge sits alone, he decides those
    issues. Art. 16, UCMJ. The sentence imposed by any type of
    court-martial does not become final until the officer who convened
    the court-martial approves it. Art. 60, UCMJ.

[^148]: Military judges are subject to the ABA Code of Judicial Conduct
    Canon 1 (1972), which requires them to uphold the independence and
    integrity of their courts*. See also* TJAG Policy Letter 3, *Uniform
    Code of Judicial Conduct for Military Trial and Appellate Judges and
    Uniform Regulations and Procedures Relating to Judicial Discipline*
    (1998).

[^149]: Art. 26(c), UCMJ, states that:

    > The military judge of a general court-martial shall be designated
    > by the Judge Advocate General, or his designee, of the armed force
    > of which the military judge is a member for detail in accordance
    > with regulations prescribed under subsection (a). Unless the
    > court-martial was convened by the President or the Secretary
    > concerned, neither the convening authority nor any member of his
    > staff shall prepare or review any report concerning the
    > effectiveness, fitness, or efficiency of the military judge so
    > detailed, which relates to his performance of duty as a military
    > judge.

    *See also* R.C.M. 503(b). A commissioned officer who is certified to
    be qualified for duty as a military judge of a general court-martial
    may perform such duties only when he is assigned and directly
    responsible to the Judge Advocate General, or his designee, of the
    armed force of which the military judge is a member and may perform
    duties of a judicial or nonjudicial nature other than those relating
    to his primary duty as a military judge of a general court-martial
    when such duties are assigned to him by or with the approval of that
    Judge Advocate General or his designee.

[^150]: MCM, 1984, Part III. *See generally* Lederer, *The Military
    Rules of Evidence, Origins and Judicial Implementation*, 130 Mil. L.
    Rev. 5 (1990).

[^151]: M.R.E. 101. *See also* M.R.E. 1101.

[^152]: M.R.E. 1102 requires any amendments to the Federal Rules of
    Evidence be incorporated into the Military Rules of Evidence 18
    months after the effective date of such amendments unless the
    President takes action to the contrary.

[^153]: *See* Saltzburg, Schinasi & Schlueter, Military Rules of
    Evidence Manual (4^th^ ed. 1997). The rules may be relaxed by the
    judge at defense request during sentencing procedures and are not
    applied (with the exception of privileges) to proceedings involving
    search authorizations or pretrial confinement hearings.

[^154]: R.C.M. 1105 allows the accused to submit to the convening
    authority any matters that may reasonably tend to affect the
    convening authority's decision whether to disapprove any findings of
    guilty or to approve the sentence.

[^155]: R.C.M. 1107(b)(1) states that the action to be taken on the
    findings and sentence is within the sole discretion of the convening
    authority and is a matter of command prerogative.

[^156]: Art. 66, UCMJ.

[^157]: 10 U.S.C.S. § 942. The law specifically prohibits an individual
    who retired after 20 years of active service in the armed forces
    from being appointed to the court of appeals.

[^158]: Decisions of the United States Court of Appeals for the Armed
    Forces are subject to review by the Supreme Court by writ of
    certiorari as provided in section 1259 of Title 28. *See also* Art.
    67a, UCMJ.

[^159]: *Supra* at note 156.

[^160]: David A. Schlueter, Military Criminal Justice Practice and
    Procedure, 3 (5^th^ ed. 1999).