Military Justice - A Brief Primer

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.

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.