In my last post, the first in a series looking at the legal history behind the ability of the American military to prosecute American citizens for civilian offenses committed within the United States during peacetime (absence of declaration of war), I summarized the evolution of statutes governing military criminal jurisdiction. This summary demonstrated, or at least took note of, the fact that for most of American history, the military retained limited jurisdiction to prosecute such offenses, if at all. In this post, I’d like to turn to the evolution of today’s legal landscape, as framed by the Supreme Court. This history tells us how we reached the point of one’s status as a military member, alone, subjected him or her to a criminal justice system that deprives him or her of substantial constitutional rights, even when facing prosecution for traditionally civilian offenses, within the United States, during time of peace when civilian courts are open for business.
Today, rarely anyone questions the military’s ability to prosecute a service member for any state or federal (military or civilian) offense simply due to his status as a member of the military. This is so regardless of where the offense occurred, who it involved, or whether there was any discernable (however remote) connection to military duty. It also does not matter whether the service member has been previously prosecuted in state court, or will be subsequently prosecuted in such court. This is an extraordinary deference by the Court and Congress during a period of equally extraordinary reverence for the military. It is also completely divorced from American history and experience—And may also be unconstitutional.
Modern day accusations of using the military for social experimentation appear unprecedented to modern readers. But this is just another example of the ever growing divide between the civilian population and military society. Since the early days of the Republic, military society has grappled with the most difficult social issues of the day well in advance of the broader public. Unlike broader society, the need for discipline forced the difficult questions debated in broader society into courts-martial. These stories have largely been relegated to a few academically minded military members. And our holistic understanding of our history has suffered. Until now. I am truly honored to review Dr. Chris Bray’s recent excellent book, Court-Martial: How Military Justice Has Shaped America from the Revolution to 9/11 and Beyond.
My recent transition from prosecution to defense has prompted some reflection on the role of the military defense counsel within the military justice system. Students of state and federal criminal procedure and constitutional law know that it was not until 1963 that the Supreme Court of the United States declared the Sixth Amendment guaranteed an indigent individual the right to representation by a court appointed attorney and the Fourteenth Amendment extended that right to state judicial systems. The evolution of the right to an appointed attorney in the military justice system, without regard to indigence, however, has received far less scholarly and journalistic—let alone judicial—attention. And it’s a story worth telling.
My last post included a brief discussion about public drunkenness on the part of enlisted personnel as a sort of rebellion against the rigid and erratic conditions of military life in the Revolutionary and Civil War era, and the officers who administered this society and its corresponding disciplinary system. In this post, I’d like to have a bit of fun and take a satirical look at one of today’s most common acts of rebellion—the slow salute.
In all the debate over the state of military justice, little, if any, attention is paid to the society it governs. This society is seemingly treated as a monolith, ever constant over periods of great change within itself and broader society over centuries. I’ve continually believed that to understand the evolution of military law, one must also understand the evolution of military society.
For most of American history, military legal institutions have largely escaped questions of legitimacy. The little attention they have received has primarily focused on the history, and sometimes competency, of courts-martial—the name given to military criminal trials. While an argument could be made that such studies indirectly address questions of legitimacy, the fact remains that military legal institutions operate in an environment in which their legitimacy is increasingly important and largely ignored.
It’s been a few months since I’ve been able to post or otherwise update the site. I try to post monthly, typically regarding a project I’m working on (or something a project makes me think of) or something I’m reading. But the past few months have been quite busy at my day job and have also included some travel. So, I’ve been spending all the time I can spare trying to get my latest article ready for spring 2016 submission season. Now that it is done and submissions have started, I can share some thoughts on what I’ve spent the last year or so working on, here and there.
I read an interesting law review article recently. Written by a prominent military justice scholar, it largely argued that military commanders should retain their current role in the military justice process. It reminded me of the oft-articulated argument for maximizing the jurisdiction of military courts and commanders over all offenses committed by military members. A cornerstone of this argument is that the “military is different.” As such, its specialized needs require a separate criminal justice system. But an article I reviewed while researching my own forthcoming article on the little known (outside the military) military’s highest court’s military necessity doctrine highlights the fact that this phrase, so often relied upon in support of the status quo, stood for the exact opposite proposition.
Both military and civilian courts have rules that govern the acceptance of a guilty plea. Based generally on the civilian rule, Rule for Courts-Martial (R.C.M.) 910 substantially restricts the military judge in the methods whereby he can accept a guilty plea in contrast to the broader discretion given his federal counterpart under Federal Rule of Criminal Procedure 11 (“Rule 11”). Under traditional statutory and regulatory interpretation, Rule 11 may inform the interpretation of R.C.M. 910, but it does not control. Unless R.C.M. 910 conflicts with the Uniform Code of Military Justice (UCMJ) or the Constitution, it is granted the force and effect of law. But as I was reviewing decisions of the Court’s 1968-1969 term my ongoing research project, I had the opportunity to re-read United States v. Care, the seminal case establishing the standard for determining the factual basis for a guilty plea in military courts-martial. In doing so, I was reminded of the contribution legal history can make to the understanding and development of military law.