Even If It Ain't Broke, Why Not Fix It? Three Proposed Improvements to the Uniform Code of Military Justice (2013)

Some might wonder what military justice has to do with national security It is a fair question. While there is little doubt that the debate over the use of military commissions to try terrorist suspects involves important national secu- rity matters, it may be somewhat less obvious how the Uniform Code of Military Justice (UCMJ), the system Congress established to discipline our own military forces, relates to national security It does for several reasons. First and foremost, good order and discipline within the military is a key component of military readiness and effectiveness. Second, the military justice system is a vital tool in the military commander's arsenal to ensure subordinate forces comply with the laws of war. Additionally, high profile incidents frequently arise which draw the attention of our allies, or enemies, and the general public to the military justice system. In those situations, the military justice system operates under intense scrutiny, and how the U.S. military disciplines its own forces can have a significant impact on the success or failure of the overall mission. For these and other reasons, an article that focuses on military justice is directly related to national security issues.The UCMJ came into effect in 1951. Over the past sixty years it has proved to be an effective, resilient system of justice in both peacetime and war. Its resilience is in large measure a result of two important influences.1 First, the system has been responsive to societal evolutions, ensuring that good order and discipline is achieved through a process considered fundamentally fair by participants within the system and observers without.2 Second, the system's resilience is a result of continual efforts by military law experts to critique existing rules and recommend important adjustments to substantive and proce- dural aspects of military law.3 In the spirit of responsiveness and resilience, this article proposes what the authors believe are three important changes to the UCMJ: (1) incorporating a no-adverse-inference warning into Article 31(b)4 (the military version of Miranda warnings), (2) transforming the Article 325 pretrial investigation into a preliminary hearing process, and (3) expressly enumerating a limited category of offenses for which civilians accompanying the force in the field can be held responsible. While each proposal focuses on a different aspect of military justice - criminal investigations, pretrial hearings, and trial procedures for civilians accompanying the force - each proposal is connected to a broader theme of ensuring fairness in the system while preserv- ing military readiness. These proposals reflect the fact that an important aspect of maintaining good order and discipline is having a justice system that is seen by those within the system as fair. A system that gives lip-service to fairness but fails to provide important protections for those subject to military jurisdiction erodes confidence and trust in the system and in military authority itself. While we do not believe such erosion has yet occurred, we do believe that these three proposals will enhance actual and perceived fairness of the military justice system without producing any degradation to mission effectiveness or any significant additional burden on the resources relied upon to implement military justice.This article explains how each of these proposed changes will eliminate aspects of the military justice process that are no longer rationally justifiable. For each proposed change, the article demonstrates how the change will actu- ally further the underlying objective of the relevant UCMJ provision, and how, accordingly, these changes will further the interests of military justice by enhancing the reality and perception of legitimacy without undermining the ability to ensure good order and discipline.I. Article 31(b): Fully Protecting the Privilege Against Self-Incrimination by Adding a No-Ad verse-Inference WarningIn 1966, the Supreme Court issued its landmark decision in Miranda v. …