March 13, 2001
COMMISSION ON THE 50TH ANNIVERSARY
OF THE UNIFORM CODE OF MILITARY JUSTICE
(The Cox Commission)
Statement of Kevin J. Barry
Judge Cox and Members of the Commission:
Good Morning.
My name is Kevin Barry. I am a retired Coast Guard Law Specialist. While on Active Duty I served in a variety of operational and legal assignments. My military justice positions included duties as trial counsel, defense counsel, staff judge advocate, and military judge. I served as Chief Trial Judge for the Coast Guard for two years, and for three years as an appellate military judge on the Coast Guard Court of Military Review.
It is a privilege for me to appear here this morning as a representative of the Bar Association of the District of Columbia, and to explain and amplify our written submissions to the Commission. We have three documents we are presenting. First is a two page "Resolution" adopted by the BADC Board of Directors which sets forth our principal issues and recommendations for change to the military justice system. The second is a 10 page document entitled "General Comments and Recommendations" which again states, and further explains the positions set forth in the Resolution. Finally, we offer a 33 page document entitled "Specific Questions, Perspectives and Matters for Consideration" which has been prepared by the BADC's Military Law Committee, which is intended not to provide any further "recommendations" or "answers," but rather to offer food for thought and to raise some of the questions that should be asked, as the Commission attempts to reach its own recommendations regarding each of the Commission's published "Topics for Consideration."
In the time I have been given, I will focus on the BADC's Resolution and on its Recommendations, which for the most part highlight concerns which have been voiced about this system for decades.
There is little doubt that in 1950, when the Uniform Code of Military Justice was enacted, it was both evolutionary and revolutionary. The reforms it put in place, while viewed with some trepidation by many practitioners of the day, proved to be ahead of their time, and we now view the UCMJ, as implemented, as the most advanced, most fair, most just, system of military justice then existing in the world. The United States did what it has so often done in its history: it established itself as the leader, setting the standard for military justice systems for years to come.
The reforms enacted in 1968 further advanced this system, establishing a military judiciary to oversee the system, and extending attorney counsel rights to all special and general courts-martial. The system had grown and matured, and continued to serve as a model for all the world to follow.
However, even though we may view it as the best military justice system of its day, it is quite clear that even in the late 1960's and early 1970's, this was a seriously flawed and deficient system. In 1972, the leading military justice system authority of his day, and arguably of the last 50 years, Major General Kenneth Hodson, wrote several law review articles strongly urging substantial further reform to this system. One he titled "Abolish or Change." It seems clear that he believed that we either needed to fundamentally change the system, or abandon it entirely. What is scary is that we have done neither. Most of his urgent reforms remain today no more than aspirations.
The Bar Association of the District of Columbia urges that there be a serious review of this system by the Administration and by Congress, and that General Hodson's recommendations be the starting point for that effort. We join with the American Bar Association in adding a key recommendation to General Hodson's list, that a moratorium on capital punishment be imposed until this system can be brought up to a standard which will justify the conclusion that the system operates fairly and justly in accordance with the ABA's several standards and guidelines.
What are the principal recommendations? Let me summarize.
First, in this system, the convening authority, the commander who exercises prosecutorial discretion, still hand picks the court-martial "panel," the jury which decides guilt or innocence and determines the punishment. The analogy would be for the United States Attorney, the government's chief prosecutor, to be able to hand pick the actual members of the jury for a criminal trial in federal district court, and to do so entirely from employees of the Department of Justice, indeed from employees on his or her own staff. Of course, we all intuitively know that such an arrangement would be so outrageously illegal and unfair as to be not only unethical, but unconstitutional as well. Any attorney who even attempted to influence the venire would be subject to professional discipline if not criminal prosecution. Yet, in the military justice system, the attorney who advises the convening authority, and who supervises the trial counsel, typically hand picks the entire panel, and presents that list of prospective members to the convening authority, who either selects from that list, or approves the list as presented. And this has been held to be legal. The question is, whether the American people view it as either fair or just. We do not believe that they do.
This is a system still without standing courts, and without judges who are appointed by the President with terms of office, salary protection, and full judicial powers.
This is a system which still makes court rules utilizing a small Department of Defense committee which operates largely in secret.
There is a test I suggest, to evaluate just how flawed this system is. This is it. If any of the inmates at the Disciplinary Barracks at Fort. Leavenworth were able to appeal his conviction under the constitutional criminal justice standards applicable to persons tried in federal district court or in every state in this nation, the conviction would be set aside. Every single one.
But of course, this is not a civilian system; it is military, and the rules are different. So consider this.
If any of those same inmates were able to appeal her conviction under the norms of justice and fairness applicable to the military justice systems operated by the United Kingdom, or Canada, or Australia, or Turkey, or many of the rest of the world's civilized nations, the conviction would be set aside. If it had jurisdiction, the European Court of Human Rights would find our system as unfair and unjust as it found Britain's former system, which was fundamentally identical to our current system.
If the minimum standards of fundamental fairness applicable in every other criminal justice system in this country, and in most of our allies' military justice systems were applied, Leavenworth would be a ghost town! Not a single conviction could be sustained. That to me is shocking.
And what about the six members on death row at Leavenworth? Will we one day execute one or more of them, convicted under such deplorably inadequate and outdated procedures? When they would be guaranteed a new trial in all those other systems? That thought should make your heart stop.
And even if these are determined to be legal and valid convictions, as they are being found by the Court of Appeals for the Armed Forces and the Supreme Court, can we say with any degree of certainty and reliability that these members would have been sentenced to death had they had more experienced and qualified defense teams which met the ABA guidelines? Or can we say that the sentence would have been affirmed had these members not suffered from the "ungoverned revolving door" of appellate defense counsel such as was condemned by Judge Wiss in his dissent in Loving? I challenge all who consider this system to answer these questions candidly, and I absolutely suggest that the necessary certainty and reliability regarding the death sentence is simply not present.
I believe that this is the only justice system specifically excepted by the ABA from its guidelines for qualifications of counsel in capital cases. I also understand that that exception was put into place because it was viewed at the time as too difficult and costly for the services to be able to meet the guidelines. Well much water has gone under the keel in the last two decades. I suspect that if those guidelines were to be adopted today, an exception to allow capital cases in this system for its convenience, or due to the perceived cost, would not be included. Saving the military services the dollars and resources that would be needed to adequately train their attorneys is a poor excuse when the cost is that someone would face death who might not have with a better trained and more experienced lawyer.
We all believe we have the best armed forces in the world: the best Navy and Army, the best Air Force, the best Marine Corps and, of course, a Coast Guard which stands as the model for Coast Guards around the world. This is as it should be. Once, on a day we now celebrate 50 years later, we also had the best military justice system, a model for all to follow. But we have now lost that position, and in the last two decades this system has gone to the bottom of the pile - to a position so low that our procedures would be held to violate fundamental human rights if applied in most other modern military justice systems. Yet, as you noted in your recent message Judge Cox, you've heard from many in the "establishment" who will not testify here today, but who have communicated with you that they are "satisfied with the status quo." I'm sure if these current and former members did come today, they would tell you that the system "ain't broke" so "don't fix it." Well, those who would say that are terribly wrong.
This Commission is the first non-governmental organization to review this system in at least three decades, and is probably the first comprehensive review of this system in its 50 year history. It is sorely needed and long overdue. We trust that your work will lead to further in-depth studies by others, including the Administration and the Congress, and that the end result will be that we will no longer have to hold our heads in shame at how far we have fallen, but rather will be what we want to be, and say we are. What we want to be is a model for the world to emulate. What we say we are is a system of real JUSTICE. Regrettably, right now we are neither.
Thank you very much.