Uniform Code of Military Justice

The Convening Authority as an Early Appellate Authority

/ Rodrigo M. Caruco / Leave a comment

At the heart of the early American court-martial was the convening authority, the military commander with the legal authority to convene such a proceeding.[1] The Army and Navy of the period was not only quite small relative to today, they also existed in a world with limited communications bandwidth. Generals, Admirals, and (Navy) Captains received their general orders from the Commander-in-Chief and were delegated vast authority to otherwise act on their own pursuant to the Commander-in-Chief’s “intent.”

Courts-martial of the period were primarily the (sole) medium to imposing punishment and maintaining control over enlisted[2] men.[3] This is an important point to understand. A criminal proceeding in a regularly constituted court of competent jurisdiction is, at least in theory, intended to independently assess the facts of a case to determine whether the government has proven its case beyond a reasonable doubt and, if necessary, impose an appropriate sentence. Courts-martial by this period had a long history of being a creature of necessity outside regular law used to enforce conformity and discipline in an age before loyalty to a state, much less a constitution, while attenuating charges of arbitrary and capricious whims (which would not be the acts of an officer and a gentleman).

Under the conventional perception of courts-martial of this era, a panel of military officers heard the evidence and independently determined guilt. Likewise, this same panel independently determined the appropriate sentence. Courts-martial of the period had no maximum punishment tables nor sentencing guidelines. Sentences were determined, paraphrasing, “as a court-martial may direct.”

So, one would be fine to think the convening authority acted as an appellate authority over the independent determination of the court-martial panel.

The convening authority selected the panel of officers to determine guilt and adjudge a sentence. He also selected the prosecutor, who also spoke for the Accused. If the convening authority disagreed with a particular ruling by the panel, he could re-submit the issue for further review. Same goes for the sentence.

Oh, and he also rated each of the officers selected for the panel, meaning he was in control of their career.

As a further indication of a court-martial’s administrative hearing character, though there were no early rules of evidence or procedure, the early Articles specifically spelled out that the trial judge advocate was responsible for compiling the record of trial and forwarding it to the convening authority. He then had the authority to approve the findings and sentence, set them aside, or approve a lower sentence.

An additional copy was forwarded to the JAG Department in Washington, DC. At the time, the department had no authority to do anything to the approved findings and sentence. The most it could do was, upon review, provide recommendations to the convening authority to consider in the future. In fact, it was not until Brigadier General Samuel Ansell in the early 20th century that the JAG Department asserted Congress intended it to have jurisdiction over courts-martial.

But, that is hundreds of years away. In colonial times, the convening authority’s power was virtually absolute and he remained the only “appellate” authority in a court-martial. As you can probably imagine, this was abused, and Congress almost immediately stepped back in to require a bit more supervision.

More next time.

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[1] Then, and now, there existed multiple types of courts-martial, differentiated by the type of punishment it was authorized to impose. The more serious the authorized punishment, the higher rank the convening authority needed to be.

[2] In a separate post I might venture a little more into officer courts-martial. While there are some notable cases, mostly an officer was just as likely to demand a trial by court-martial when “dishonored” as he was to face a court-martial for misconduct. And even when that happened, officers were loathe to convict one of their own.

[3] Also in a separate post, I will explore a bit more why this was so. For now, recruiting was different, military organization was different, enlisted men were different. It was just a different time and a different people, and a different need.

Wading Into the Supreme Court’s Military Law Jurisprudence

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“This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that ‘it is the primary business and armies and navies to fight or be ready to fight wars should the occasion arise.’”[1]

“We find nothing in the history or constitutional treatment of military tribunals which entitles them to rank along with Article III courts as adjudicators of the guilt or innocence of people charged with offenses for which they can be deprived of their life, liberty or property. Unlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise.”[2]

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Competing Conceptions of Manhood and Honor in the North and the Union Army

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If you are like me, there is a never ending list of books you keep adding to but can’t get to. For me, that often also leads to a similar stack of books on my bookshelf bought in excitement, just waiting to be read. The Gentlemen and the Roughs, by Professor Lorien Foote, is one of those books. I’ve finally been able to dive into it and what a consuming read it has been so far.

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Putting an (Eventual) Bow On Some Initial Research Questions

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My initial foray into military justice scholarship began a number of years ago with a general hypothesis:

The Supreme Court of the United States is today, in part, largely hands off toward the military justice system because of the existence of the United States Court of Appeals of the Armed Forces, a civilian court sitting atop a three-tiered judicial system. Though it is perceived, and perceives itself, as a court of last resort, it does not appear to often act like one. This is because the military jurisdiction created by the Uniform Code of Military Justice in 1950 was a compromise between those advocating for the elimination of command control of the military justice system and those advocating maintaining the existing system.

It is interesting because the military justice system is a decently sized jurisdiction compared to the fifty states. And if the United States Court of Appeals for the Armed Forces were an Article III intermediate appellate court, hearing every court-martial appeal as a matter of right, its workload would most closely mirror that of the United States Court of Appeals for the First Circuit.

Not only is it a sizeable jurisdiction, Congress used the military justice system as the framework for creating the military commissions system to prosecute certain “enemy belligerents” (think 9/11, War on Terror type folks). But Congress provided noticeably more due process to those belligerents than it provided American service members subject to military justice. Fewer than ten military commissions have reached completion in the nearly two decades of their existence, yet commissions enjoy considerably more attention in academic journals.

I have enjoyed testing this hypothesis over the past several years. I’ll be sharing that experience on these pages for a while. Some of my research culminated in published articles, some I will share for the first time here. Along the way, I’ll let my mind wander and go on a few tangents and down some rabbit holes.

Landmark Case: United States v. Jacoby

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United States v. Clay, 1 U.S.C.M.A. 74 (1951), held that service members are specifically excluded from the protections enshrined in the Constitution. Instead, they were solely entitled to the statutory rights granted them by Congress. These rights, referred to as “military due process,” may mirror those found in the Constitution, but they need not be. That all changed with the CAAF’s decision in United States v. Jacoby, 11 U.S.C.M.A. 428 (1960), which makes it a landmark—if not THE landmark—military justice decision.

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Another Look at the Supreme Court’s Military Justice Vagueness Doctrine

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I previously explored the rule set down by the Supreme Court (“Court”) in Parker v. Levy[1] that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs.”[2] After recently coming across some material on the level of scrutiny applied to criminal statutes regulating economic activity under the Commerce Clause in Article I of the Constitution of the United States, I dug a little deeper. And it surprised me.

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Understanding Military Intermediate Appellate Tribunals As Early Successes In, But Perhaps Now Left Behind By, Military Justice Reform

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The debate over the appropriate role of the military commander in sexual assault cases remains a hotly contested issue among victim advocates, policymakers, and the military establishment. Listening to the rhetoric, one can excuse the interested reader for believing this is new—but it is not. Reformers both inside and outside the military have advocated for removing military commanders from military criminal law prosecutions for over 70 years.

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Equating Military Crimes to Economic Crimes — The Levy Doctrine

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Parker v. Levy is a seminal decision in military law that I have written about in previous posts. That decision upheld two rather sweeping criminal statutes that criminalize, by way of a conviction in a federal court, any conduct by a military officer or enlisted person that other military officers think is unbecoming of an officer and a gentleman (gentlewoman), or is prejudicial to good order and discipline or otherwise brings discredit to the armed forces. For those trained in the law or eerily erudite in the law absent training, these statutes appear unconstitutionally vague. But in his majority decision, then-Justice Rehnquist wrote that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. I have since wondered what that meant, and whether this view is worth re-assessing.

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How the Gay Rights Movement May Inform the Military Deference Doctrine

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The Supreme Court of the United States—and thus the federal judiciary—treats military law as sui generis, a thing unique unto itself. In the rare grant, it generally substantially defers to the executive branch outside of questions of jurisdiction. I have often wondered why. The Court hears a wide range of complex cases and, at times, from specialized communities. But the military is treated differently. I wonder if the evolution of same sex rights at the Court may tell us why.

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