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Exapanding from a shorter entry at MilBlogs - an effort to explain what goes on during a military investigation.
A recent high-profile news story reveals that in spite of the popularity of the television program "JAG" and the movie "A Few Good Men", most Americans have little understanding of the military justice system. In the interest of providing the tip of the iceberg of knowledge, here's a brief primer.
Key documents defining the military justice system include the United States Constitution, the Uniform Code of Military Justice (UCMJ), and the Manual for Courts Martial. If a crime has been committed (or suspected), an investigation is conducted under article 32 of the UCMJ. The purpose of that investigation - which normally concludes with a hearing, somewhat equivalent to a civilian grand jury investigation - is to determine the need for a court-martial (a military trial).
The Fifth Amendment constitutional right to grand jury indictment is expressly inapplicable to the Armed Forces. In its absence, Article 32 of the Uniform Code of Military Justice (Section 832 of Title 10, United States Code), requires a thorough and impartial investigation of charges and specifications before they may be referred to a general court-martial (the most serious level of courts-martial). However, the accused may waive the Article 32 investigation requirement. The purpose of this pretrial investigation is to inquire into the truth of the matter set forth in the charges, to consider the form of the charges, and to secure information to determine what disposition should be made of the case in the interest of justice and discipline. The investigation also serves as a means of pretrial discovery for the accused and defense counsel in that copies of the criminal investigation and witness statements are provided and witnesses who testify may be cross-examined.Many news accounts of the investigation of Marines for possible crimes in Haditha declare that the investigation is complete - this is not true - and give the erroneous impression that guilt has been determined. But the outcome of the investigation (even if it includes full confessions from all parties) can only be that there is or is not sufficient evidence to convene a court-martial and determine the guilt or innocence of the accused.
I'm not making any comments in this specific case. But I do mean to point out that from a legal perspective, guilt or innocence is yet to be determined. This can only be done in an actual trial. This may come as a shock to those who've been following some very high profile statements made on this case - which is why no one with any concern for the rule of law has made any such statements.
Anyone who's been in service as long as I have has some experience with military justice. The military is society in microcosm, and if you work in an organization of several hundred people, chances are some are criminals. Some break laws unique to the military, others violate the established laws of society. Some go AWOL. Some beat their spouses. Some break speed limits. Some drive drunk. Some disobey orders. Some are thieves who bring government pens home from the office. Some commit murder. Some listen to pirated music or record football games without the express written consent of the National Football League. Some may even try to provide 'cover' for the crimes of others.
If this were true only of the military we'd have quite a story. But it isn't. Other than AWOL and orders that's pretty much like your neighborhood, believe it or not. But when military members commit violent crimes, the fact that they are military has a prominent place in the story.
Strangely, in the minds of many the fact that they've been investigated and prosecuted by the military seems like just another indicator of our brutality - they assume we need such a safeguard in our system because we are overly prone to such transgressions. (I won't go into all the details of why we need a separate justice system in this brief comment) So even in "doing the right thing" we are apt to be accused of additional violations of societal norms.
That prejudice will be fueled by the media narrative - which will in some way or another build on the pre-existing mindset that proclaims it's the system, and not this innocent young person, that is at fault, and simultaneously express outrage that the same system is prosecuting the case. Add in the defense's relatively broad latitude in public discussion of the case, offer low-hanging journalistic fruit like "cover-up" or "persecution of only the junior troops" and the stage is set for a long and painful experience.
In the background, in reality, less than perfect humans will do their best to judge their less than perfect fellows in a quest for an elusive concept called justice. Kudos to all who work within the military justice system for performing admirably under such adverse circumstances.
It is obviously the rule of judges that the Democrats prefer to the rule of law, contrary to their claims.Posted by Ymarsakar at May 31, 2006 10:22 PM
Thanks Greyhawk. That helps. You are very good at what you do.Posted by Lucille at May 31, 2006 11:17 PM
Who would have ever thought that those who defend us would need us to defend them. God save us from the left and how about watching over our marines while your at itPosted by Lisa at June 1, 2006 12:51 AM
You made clear and concise points on the radio. We need more people like you to defend our soldiers. People who spit on our soldiers should be ashame. Our military guys are the bravest!Posted by Lili at June 1, 2006 12:58 AM
Good post, it's important to note that while an Art 32 hearing is similar to a grand jury, it differs markedly in the fact that the accused (w/ counsel) can appear, present witnesses, cross-examine prosecution witnesses, etc.
In a typical grand jury proceeding, it's just the gov't and the defense isn't even allowed in.Posted by Army Lawyer at June 1, 2006 02:54 PM
Good laydown. Would suggest only one addition: that the UCMJ is embodied in 10 USC 801-946.
Way too many folks don't understand that the UCMJ is law, not just a collection of rules the military thought up.Posted by Expatriate at June 1, 2006 06:25 PM
Thanks Greyhawk. I wish we didn't have to talk or think about these things, but it is necessary to educate the public that there IS a process and the process needs to be respected before they rush to judgment.Posted by Some Soldier's Mom at June 2, 2006 03:28 AM
Worry not. The fix is in. By waiting four months to start the, ahem, "investigation," the military allowed crucial evidence to be destroyed and lies to be coordinated.
There will be a long elaborate drama in which the military pretends to aggressively pursue truth and accountability, but the end result will be mostly acquittals and maybe a wrist-slap or two.
In the end, you'll be able to assure yourselves that there was no massacre and that it was all a figment of the left-wing's imagination. Military people call this sort of thing "slow-rolling," and the Pentagon has long has it down to a science.Posted by WW at June 2, 2006 03:39 AM
(whispered under my breath: don't feed the trolls...dont feed the trolls...don't feed the trolls)Posted by Pilgrim at June 2, 2006 01:41 PM
Wasn't the point of "A few good men" that it was only the heroic efforts of the defense attorney in cracking the crazy but entrenched Col. Nathan Jessep that prevented a cover-up? Wasn't the neophyte assigned to the case so that the two marines could be scapegoated? Of course that was fiction, but expecting such a movie to teach us that the military justice systems is flawless seems unreasonable.
Since we're on the subject, any thougths about the slap at the top brass that the "NCIS" finale delivered?Posted by Retief at June 2, 2006 06:16 PM
Thank you, Greyhawk, for explaining this in such a succinct manner. I haven't written about it yet, frankly, because I don't know what to say! What are the facts? The only people who know them are not talking. The only people that are talking, do not know the facts, or so it is my belief. Again, thank you for your service above and beyond...Posted by Rosemary at June 3, 2006 12:02 AM
The “investigations” that are currently going on are not Article 32 investigations / hearings. They can only occur after a military member has been “accused” of an offense. The ongoing investigations are equivalent to Army “Article 15-6” investigation. It is non-judicial; a command function to determine what happened and where to go from here.Posted by Peter at June 3, 2006 01:33 PM Hide Comments | Show/Add Comments in Popup Window(12) | (Note: You must refresh main page to view newly posted comments here)