Report of the
Commission on the 50th Anniversary of the
Uniform Code of Military Justice
May 2001
The Commission
The Honorable Walter T. Cox III, Chair
Captain Guy R. Abbate, Jr., JAGC, USN (Ret)
Professor Mary M. Cheh
Rear Admiral John S. Jenkins, JAGC, USN (Ret)
Lieutenant Colonel Frank J. Spinner, USAF (Ret)
Professor Elizabeth Lutes Hillman, Reporter
Kathleen A. Duignan, Esquire, Assistant to the Chair
Sponsored by the
National Institute of Military Justice
Special thanks for the assistance of
The George Washington University Law School
Rutgers School of Law at Camden
TABLE OF CONTENTS
I. STATEMENT OF PURPOSE
II. EXECUTIVE SUMMARY
III. RECOMMENDATIONS
A Modify the pretrial role of the convening authority in both selecting
court-martial members and making other pre-trial legal decisions that
best rest within the purview of a sitting military judge.
B Increase the independence, availability and responsibilities of
military judges.
C Implement additional protections in death penalty cases.
D Repeal the rape and sodomy provisions of the Uniform Code of Military
Justice, 10 U.S.C. §§ 920 & 925, and the offenses specified under the
general article, 10 U.S.C. § 134, that concern criminal sexual
misconduct. Replace them with a comprehensive Criminal Sexual Conduct
Article, such as is found in the Model Penal Code or Title 18 of the
United States Code.
IV. DISCUSSION OF ADDITIONAL ISSUES
V. APPENDICES
I. Statement of Purpose
Sponsored by the National Institute of Military Justice, a private
non-profit organization dedicated to the fair administration of military
justice, this Commission was formed on the occasion of the 50th
anniversary of the Uniform Code of Military Justice, the greatest reform
in the history of United States military law.(1) The UCMJ was drafted in
the aftermath of World War II, at a time when protecting the rights of
military personnel was foremost in the minds of lawmakers. The outcry of
veterans' organizations and bar associations made legislators aware of
the arbitrary and summary nature of many of the two million
courts-martial held during the war. By setting a higher standard of due
process for servicemembers accused of crimes, the UCMJ, augmented by
significant revisions in 1968 and 1983, became a model for criminal
justice. It protected accused servicemembers against self-incrimination
fifteen years before Miranda v. Arizona, provided for extensive pretrial
screening investigations, permitted relatively broad access to free
counsel, and incorporated many of the best features of federal and state
criminal justice systems.
This landmark legislation created the fairest and most just system of
courts-martial in any country in 1951. But the UCMJ has failed to keep
pace with the standards of procedural justice adhered to not only in the
United States, but in a growing number of countries around the world, in
2001. The UCMJ governs a criminal justice system with jurisdiction over
millions of United States citizens, including members of the National
Guard, reserves, retired military personnel, and the active-duty force,
yet the Code has not been subjected to thorough or external scrutiny for
thirty years. The last comprehensive study of courts-martial took place
in 1971, when Secretary of Defense Melvin Laird, troubled by allegations
of racism at courts-martial, appointed a task force to study the
administration of military justice.(2) This legislative and executive
inattention is a new phenomenon; between 1951 and 1972, military justice
was the focus of dozens of congressional hearings and the subject of
countless official reports from government agencies.
(3)
Based on the response to the Commission's request for comments on the
current military justice system, a "bottom-up" review of military
justice is long overdue. In recent years, countries around the world
have modernized their military justice systems, moving well beyond
theframework created by the UCMJ fifty years ago.(4) In contrast, military
justice in the United States has stagnated, remaining insulated from
external review and largely unchanged despite dramatic shifts in armed
forces demographics, military missions, and disciplinary strategies.
Since the Tailhook episode in 1991, the armed forces have faced a
near-constant parade of high-profile criminal investigations and
courts-martial, many involving allegations of sexual misconduct, each a
threat to morale and a public relations disaster. As a result of the
perceived inability of military law to deal fairly with the alleged
crimes of servicemembers, a cottage industry of grassroots organizations
devoted to dismantling the current court-martial system has appeared,
aided by the reach of the worldwide web and driven by the passions of
frustrated servicemembers, their families, and their counsel.(5) The
Commission-which could not pay for the travel of witnesses, and which
publicized its hearings largely by word-of-mouth--heard testimony from
citizens who traveled to Washington, D.C., from states around the
country, including those who came from Washington, Colorado,
Massachusetts, and Louisiana to make their voices heard, joining
hundreds who submitted written comments.
In order to address this need for public scrutiny and reform, the
Commission began its work by soliciting comments in order to formulate a
list of topics to be addressed.(6) Thereafter, a public hearing was held on
Tuesday, March 13, 2001, at The George Washington University Law School.(7)
More than 250 individuals, representing themselves and more than a dozen
organizations, submitted written comments to the Commission. Nineteen
testified in person.(8) This Report, intended for submission to the House
and Senate Committees on Armed Services, the Secretary of Defense, the
Service Secretaries, and the Code Committee, was prepared to convey the
results of the hearing and the Commission's deliberations about military
justice to those who can help the UCMJ live up to its promise when it
was implemented in 1951.
In this Report, the Commissioners seek to:
(1) Provide a record of submissions and testimony;
(2) Make specific recommendations for improvement; and
(3) Identify issues warranting further study and consideration.
The Commission's work is not intended to substitute for congressional
hearings or officially sponsored government studies of military justice,
both of which the Commissioners would heartily welcome. However, the
depth and breadth of the Commission's experience should make any
observer pause before dismissing its recommendations. Chaired by the
Honorable Walter T. Cox III, the Commission's cumulative experience with
the armed forces and the law exceeds 150 years. Its members have served
in the uniforms of the United States Army, Navy, Air Force, and Coast
Guard and are members of multiple bars. They have practiced, studied,
taught-and made-military law under the UCMJ.
Judge Cox, in addition to serving in the United States Army, has been a
Judge of the South Carolina Circuit Court and an Acting Associate
Justice of the Supreme Court of South Carolina, and has served on the
United States Court of Military Appeals and the United States Court of
Appeals for the Armed Forces, including four years as Chief Judge.
Captain Guy R. Abbate, Jr., JAGC, USN (Ret), a senior instructor at the
Naval Justice School and a consultant to the Defense Institute of
International Legal Studies and the Naval Justice School, served in the
Navy Judge Advocate General's Corps for 20 years. Professor Mary M. Cheh
is the Elyce Zenoff Research Professor of Law at The George Washington
University Law School and a member of the Rules Advisory Committee of
the United States Court of Appeals for the Armed Forces. A former Judge
Advocate General of the Navy and a veteran of 28 years of service, Rear
Admiral John S. Jenkins, JAGC, USN (Ret), is Senior Associate Dean for
Administrative Affairs at The George Washington University Law School.
Lieutenant Colonel Frank J. Spinner, USAF (Ret), represents military
personnel in court-martial trials and appeals as an attorney in private
practice after retiring from the United States Air Force Judge Advocate
General's Department in 1994.
Before setting forth its recommendations, the Commission wishes to
acknowledge the unique atmosphere in which military justice operates.
During hostilities or emergencies, it is axiomatic that commanders must
enjoy full and immediate disciplinary authority over those placed under
their command. The Commission believes that none of its suggestions will
interfere with the recognized need of commanding officers to function
decisively and effectively during times of war as well as peace.
II. Executive Summary
The Commission recommends immediate action to address four problem areas
of court-martial practice and procedure. These recommendations,
addressed at length in Part III below, are:
1. Modify the pretrial role of the convening authority in both selecting
court-martial members and making other pre-trial legal decisions that
best rest within the purview of a sitting military judge.
2. Increase the independence, availability, and responsibilities of
military judges.
3. Implement additional protections in death penalty cases.
4. Repeal the rape and sodomy provisions of the Uniform Code of Military
Justice, 10 U.S.C. §§ 920 & 925, and the offenses specified under the
general article, 10 U.S.C. § 134, that concern criminal sexual
misconduct. Replace them with a comprehensive Criminal Sexual Conduct
Article, such as is found in the Model Penal Code or Title 18 of the
United States Code.
Other issues warrant consideration as well. Part IV lists several
concerns of the Commission, including the proper role of the staff judge
advocate, the question of fairness in administrative processes, the
wisdom of the Feres doctrine in light of present-day tort practice, the
sentencing authority of military judges, the trial instructions used in
cases of conscientious objection, and the jurisdiction of military
appellate courts. Further study and more extensive hearings would help
to resolve the many questions that plague servicemembers and military
legal practitioners who confront these important areas of military law.
Consistent with its emphasis on enhancing the perceived and actual
fairness of military justice under the UCMJ, the Commission also urges
the adoption of a more open process for studying and altering the UCMJ
as necessary. The current system of recommending changes to the Code,
which involves closed meetings and little opportunity for input from
civilian and military practitioners, has failed to encourage much-needed
reform while contributing to a public image of courts-martial as immune
from external scrutiny. Implementing a more transparent process to
consider changes to court-martial rules and procedures would correct the
impression that the military justice system is unresponsive to the
legitimate concerns of the public.
III. Recommendations
The Commission identified four areas in need of immediate attention,
based on its first-hand observations as well as the submissions received
and the testimony heard. We recommend the following changes be effected
as soon as possible:
A. Modify the pretrial role of the convening authority in both selecting court-martial members and making other pre-trial legal decisions that best rest within the purview of a sitting military judge.
As many witnesses before the Commission
pointed out, the far-reaching role of commanding officers in the
court-martial process remains the greatest barrier to operating a fair
system of criminal justice within the armed forces. Fifty years into the
legal regime implemented by the UCMJ, commanding officers still loom
over courts-martial, able to intervene and affect the outcomes of trials
in a variety of ways. The Commission recognizes that in order to
maintain a disciplinary system as well as a justice system commanders
must have a significant role in the prosecution of crime at
courts-martial. But this role must not be permitted to undermine the
standard of due process to which servicemembers are entitled.
The submissions that appear in Appendix B describe many possible ways to
reduce the impression of unfairness created by the role of convening
authorities in military criminal justice. The question of what role such
authorities should play in the disciplinary and criminal structure of
the modern armed forces warrants further study. But based on the
Commission's experience, and on the input received in submissions and
testimony, there is one action that should be taken immediately:
Convening authorities must not be permitted to select the members of
courts-martial.
There is no aspect of military criminal procedures that diverges further
from civilian practice, or creates a greater impression of improper
influence, than the antiquated process of panel selection. The current
practice is an invitation to mischief. It permits-indeed, requires-a
convening authority to choose the persons responsible for determining
the guilt or innocence of a servicemember who has been investigated and
prosecuted at the order of that same authority. The Commission trusts
the judgment of convening authorities as well as the officers and
enlisted members who are appointed to serve on courts-martial. But there
is no reason to preserve a practice that creates such a strong
impression of, and opportunity for, corruption of the trial process by
commanders and staff judge advocates. Members of courts-martial should
be chosen at random from a list of eligible servicemembers prepared by
the convening authority, taking into account operational needs as well
as the limitations on rank, enlisted or officer status, and same-unit
considerations currently followed in the selection of members. Article
25 of the UCMJ should be amended to require this improvement in the
fundamental fairness of court-martial procedure.
While the selection of panel members is clearly the focal point for the
perception of improper command influence, the present Code entrusts to
the convening authority numerous other pretrial decisions that also
contribute to a perception of unfairness. For example, the travel of
witnesses to Article 32 hearings, pretrial scientific testing of
evidence, and investigative assistance for both the government and the
defense are just a few of the common instances in which the convening
authority controls the pretrial process and can withhold or grant
approval based on personal preference rather than a legal standard.
While the responsibility for such matters shifts to the military judge
upon referral to court-martial, the delays created before the trial
begins undermine due process for both sides at a court-martial. The need
for the availability of a sitting judge, from at least the moment of
preferral of the charges, is discussed at length in III.B. below, but it
is the perception that the convening authority can manipulate the
pretrial process to the advantage of either side that mandates this
change in authority over pretrial legal matters. This issue goes to the
core of a serviceperson's rights to due process and equal protection
under the law. Pretrial decisions involve legal judgments that can-and
often do-affect the outcome of trials. For that reason, like the
selection of panel members, decisions on pretrial matters should be
removed from the purview of the convening authority and placed within
the authority of a military judge.
The Commission is aware of the 1999-2000 comprehensive study completed
by the Joint Service Committee on Military Justice of the Department of
Defense, which concluded that the present allocation of responsibility
among convening authorities and military judges should be retained. We
respectfully disagree with the conclusions reached by that body. The
combined power of the convening authority to determine which charges
shall be preferred, the level of court-martial, and the venue where the
charges will be tried, coupled with the idea that this same convening
authority selects the members of the court-martial to try the cases, is
unacceptable in a society that deems due process of law to be the
bulwark of a fair justice system.
B. Increase the independence, availability and responsibilities of military judges.
Complaints against the military justice
system have long been fueled by allegations that military judges are
neither sufficiently independent nor empowered enough to act as
effective, impartial arbiters at trial. Since the adoption of the UCMJ,
the authority of military judges (initially "law officers" under the
1950 UCMJ) has gradually increased, to the point where many judges now
possess, either by regulation or by custom and tradition of the
services, at least some modicum of judicial independence. The Commission
is convinced that further and innovative change is needed to complete
the process of making military trial and appellate judges full-fledged
adjudicators of criminal law and procedure.
The Commission believes that three immediate changes would enhance the
military judiciary and its ability to accomplish its mission and, at the
same time, provide greater protections for accused persons. The changes
would also enhance the prosecutors' ability to process courts-martial in
an orderly and effective fashion. First, the Commission recommends the
creation of standing judicial circuits, composed of tenured judges and
empowered to manage courts-martial within geographic regions. Variants
of this system are already in use in some regions and branches of the
service, but it is crucial that a judge be identified and made available
to all accused servicemembers, as well as to the prosecution, after
charges are preferred. Under the current system, neither defense counsel
nor prosecutors have a judicial authority to whom to turn until very
close to the date of trial. This creates delay, inefficiency, and
injustice, or at a minimum, the perception of injustice, as described in
III.A. above.
Second, establishing fixed terms of office for military judges would
also enhance the overall independence of the military judiciary. The
Joint Service Committee of the Department of Defense in a recent report
to the Code Committee recognized that this was desirable and feasible,
but stopped short of recommending a legislative fix. The Commission
believes that increased judicial independence is critical, given the
central role of judges in upholding the standards of due process,
preserving public confidence in the fairness of courts-martial, and
bringing United States military justice closer to the standards being
set by other military criminal justice systems around the world.
Third, either the President through his rule making authority, or
Congress through legislation, should establish clear processes and
procedures for collateral attack on courts-martial and authorize
appellate military courts to both stay trial proceedings and to conduct
hearings on said matters within their jurisdiction. The present ad hoc
system of appellate courts ordering post-trial hearings without any
clear guidelines or procedures is contrary to the practice of the United
States District Courts and state trial courts throughout the land.
C. Implement additional protections in death penalty cases.
Given the increased scrutiny focused on capital litigation in the United States, the operation of the death penalty in the armed forces deserves close attention. Opponents of capital punishment have raised substantial questions of whether the modern military needs a death penalty, particularly during peacetime (an issue that the Commission feels deserves further study), but even the most ardent supporters of the death penalty accept the critical need for procedural fairness in capital cases. The Commission recommends that three steps be taken to improve capital litigation in the military:
1. Require a court-martial panel of 12 members.
2. Require an anti-discrimination instruction.
3. Address the issue of inadequate counsel by studying alternatives to the current method of supplying defense counsel.
Among all of the United States criminal
jurisdictions that may impose a sentence of death, only at a
court-martial does that sentence not require the verdict of a
twelve-person jury. A general court may adjudge death with as few as
five members, an anomaly that corrupts the legitimacy of both panel
selection and the verdict itself.(9) Because citizens in uniform deserve no
less consideration than their civilian peers, the UCMJ should be amended
to require twelve members in capital cases. Already the Manual for
Courts-Martial requires special procedures for capital courts-martial,
and the Court of Appeals for the Armed Forces has recognized the burdens
that capital litigation imposes on both accused servicemembers and the
resources of military justice. Requiring twelve members to serve on
capital courts-martial (and implementing our first recommendation
overall, calling for random selection of eligible members) would raise
the standard of procedural justice for accused servicemembers to the
level already established in civilian capital litigation.
Like requiring twelve-member panels in capital cases, our second
recommendation could be implemented without major cost or change in
existing procedures. We recommend that military judges instruct panels
in capital cases that they may not consider the race of the accused
servicemember or the victim(s) in deciding whether to impose death.(10) The
racial disparities of military death row mirror the disparities evident
in civilian criminal jurisdictions that impose death. Of the six servicemembers currently on military death row, four are African
American, one is a native Pacific Islander, and one is white; all were
convicted for killing white victims. An explicit instruction prior to
sentencing would remind courts-martial of the importance of ensuring
racial justice amid the high stakes and emotions of capital cases.
Addressing the Commission's third concern is more difficult, but no less
important, than addressing the issues of panel size and racial
disparities in the administration of the military death penalty.
Inadequate counsel is a serious threat to the fairness and legitimacy of
capital courts-martial, made worse at court-martial by the fact that so
few military lawyers have experience in defending capital cases. The
current system of providing and funding defense counsel shortchanges
accused servicemembers who face the ultimate penalty. It has been long
recognized by every U.S. jurisdiction with a death penalty that only
qualified attorneys may conduct death penalty cases. The paucity of
military death penalty referrals, combined with the diversity of
experience that is required of a successful military attorney, leaves
the military's legal corps unable to develop the skills and experience
necessary to represent both sides properly. The Commission believes that
Congress should study and consider the feasibility of providing a
dedicated source of external funding for experienced defense counsel if
military capital litigation continues to be a feature of courts-martial
in the 21st century.
D. Repeal the rape and sodomy provisions of the Uniform Code of Military Justice, 10 U.S.C. §§ 920 & 925, and the offenses specified under the general article, 10 U.S.C. § 134, that concern criminal sexual misconduct. Replace them with a comprehensive Criminal Sexual Conduct Article, such as is found in the Model Penal Code or Title 18 of the United States Code.
Of all of the topics that appeared on the
Commission's long list of possible areas for consideration, the issue of
prosecuting consensual sex offenses attracted the greatest number of
responses from both individuals and organizations. The Commission
concurs with the majority of these assessments in recommending that
consensual sodomy and adultery be eliminated as separate offenses in the
UCMJ and the Manual for Courts-Martial. Although popular acceptance of
various sexual behaviors has changed dramatically in the fifty years
since the UCMJ became effective, the Commission accepts that there
remain instances in which consensual sexual activity, including that
which is currently prosecuted under Articles 125 and 134, may constitute
criminal acts in a military context. Virtually all such acts, however,
could be prosecuted without the use of provisions specifically targeting
sodomy and adultery. Furthermore, the well-known fact that most
adulterous or sodomitical acts committed by consenting and often married
(to each other) military personnel are not prosecuted at court-martial
creates a powerful perception that prosecution of this sexual behavior
is treated in an arbitrary, even vindictive, manner. This perception has
been at the core of the military sex scandals of the last decade.
Because it is crucial that servicemembers are both made aware of and
held accountable for sexual activities that interfere with military
missions, undermine morale and trust within military units, or exploit
the hierarchy of the military rank structure, the Commission recommends
that a new statute be drafted to replace the current provisions. Many
issues presented in the modern context simply do not fit the current
statutes. For example, adultery, indecent exposure, indecent acts,
unprotected sexual intercourse by an HIV-positive servicemember,
wrongful cohabitation, fraternization, and numerous other offenses are
not specified in the Uniform Code of Military Justice but are instead
prosecuted under the general article of the Code as "conduct prejudicial
to good order and discipline or service discrediting conduct." The same
is true of incest, the sexual abuse of minors, pandering or pornography.
A comprehensive Criminal Sexual Conduct statute would more realistically
reflect the offenses that should be proscribed under military law. The
new statute would reconfigure the entire field of "Criminal Sexual
Conduct" in the military context, replacing the outdated "rape and
carnal knowledge," "sodomy," and general article offenses with a modern
statute similar to the laws adopted by many states and in Title 18 of
the United States Code.(11) The Commission urges that the new statute
recognize that military rank and organization may produce an atmosphere
where sexual conduct, although apparently consensual on its face, should
be proscribed as coercive sexual misconduct. There are many models from
civilian life that make similar legal distinctions, including laws that
govern sexual activity between teachers and students, doctors and
patients, probationers and counselors, and corrections officers and
prisoners. The Commission believes that this type of statute is
appropriate and relevant in a military organization with its attendant
subordinate-superior and special trust relationships.
IV. Discussion of Additional Issues
The Commission stands ready to assist in the implementation of the
recommendations set forth above. These proposals, however, do not
exhaust the need for reform within the military justice system.
Additional matters worthy of further consideration include:
A. Staff Judge Advocates. The impression that staff judge
advocates (SJA's) possess too much authority over the court-martial
process is nearly as damaging to perceptions of military justice as the
over-involvement of convening authorities at trial. The broad authority
granted some staff judge advocates creates a number of unwanted,
contradictory images of courts-martial: that over-zealous prosecutors
can pursue charges at will and are rewarded for aggressive prosecution,
that convening authorities routinely disregard the legal advice of their
SJA's in order to pursue unwarranted or even vindictive prosecutions,
and that lawyers, rather than line officers, control the military
justice apparatus. Staff judge advocates, who act as counsel to
commanding officers and not as independent authorities, should not exert
influence once charges are preferred, should work out plea bargains only
upon approval of the convening authority, and deserve a clear picture of
what their responsibilities are.
It has been recognized since the adoption of the UCMJ that the
invidiousness of command influence strikes at the heart of the fairness
of the process. Too often, however, critics have focused exclusively on
the inappropriate actions of convening authorities in pointing out
instances of command influence that violate Article 36 of the UCMJ. In
reality, the threat is as likely to come from SJA's and "others subject
to the Code," see Article 36 (b), as from convening authorities. The
Code and the Manual for Courts-Martial should be amended to stress the
need for impartiality, fairness and transparency on the part of staff
judge advocates as well as all attorneys, investigators, and other
command personnel involved in the court-martial process. These
amendments should be drafted so as to make clear that violation of these
principles as well as the trust inherent in these tasks is punishable
under the UCMJ.
B. Administrative processes. The Commission's focus is on
military criminal justice, but we would be remiss in ignoring the
impression of unfairness created by the growing use of administrative
discharge action in lieu of court-martial. While the services must be
afforded considerable latitude to manage their personnel, there is no
denying that administrative action, from non-judicial punishment to
administrative withdrawal of qualifications, certifications, and
promotion opportunities, can have a devastating effect on an
individual's enlistment or career. The misuse, or the perception of
misuse, of these administrative processes subverts the fundamental
protections of the UCMJ, destroying the notion of fundamental fairness
that is so critical to a professional military force. The Commission
recognizes that an aggrieved servicemember may seek administrative
redress at either the appropriate military administrative appeal board
or in federal court, but in most instances these processes cannot make
these individuals whole. Rarely can servicemembers be returned to normal
career tracks once they have been unfairly administratively sanctioned
and fallen behind their career peer groups. Thus, the Commission
recommends an overall review of the military disciplinary system should
consider, and, where necessary, reform, the administrative disciplinary
and sanctioning process.
Three aspects of the current system in particular concern the
Commission. First, the manner in which discharges are characterized is a
relic of the past and should be updated to reflect contemporary
realities. The current U.S. military is a volunteer-mercenary force, not
a conscripted armed force. It may be sufficient simply to "fire" a
servicemember who does not conform to the standards and norms of
military service rather than stigmatizing that person with a negative
discharge. This shift in the characterization of military discharges
would permit servicemembers to receive veterans' entitlements based on
criteria such as their length of good service and whether they were
medically disabled while on active duty, rather than relying on an
arcane hierarchy of discharge categories.
Second, the current system encourages disparate treatment of
servicemembers: One member may be administratively discharged for
felonious conduct, such as use of controlled substances, and another
subjected to court-martial for the same offense. The member who is tried
by a court-martial ends up with a federal criminal felony record, the
other none. Such widely varying punishments are inconsistent with the
UCMJ's fundamental goal of standardizing and modernizing criminal
sanctions in the armed forces and should be corrected.
Finally, the current system does not provide ready access to the federal
courts or other appellate review. Consideration should be given to
providing for military appellate review of administrative discharges.
The military appellate courts are already in place and are capable of
reviewing administrative discharges in a manner similar to their current
review of court-martial convictions. Likewise, the United States Court
of Appeals for the Armed Forces could review the military appellate
courts upon petition in the same way that it currently reviews
courts-martial convictions.
C. Feres Doctrine. The Commission was not chartered with the idea
that our study would include matters such as the Feres Doctrine.
However, given that it was articulated the same year that the UCMJ was
adopted, and that many former servicemembers have been frustrated by its
constraints on their ability to pursue apparently legitimate claims
against the armed forces, many of which bear little if any relation to
the performance of military duties or obedience to orders on their
merits, the Commission believes that a study of this doctrine is
warranted. An examination of the claims that have been barred by the
doctrine, and a comparison of servicemembers' rights to those of other
citizens, could reform military legal doctrine in light of present day
realities and modern tort practice. Revisiting the Feres Doctrine would
also signal to servicemembers that the United States government is
committed to promoting fairness and justice in resolving military
personnel matters.
D. Sentencing. The Commission believes the sentencing process at
court-martial deserves further review. Suggestions for reform have
ranged from the use of sentencing guidelines to making military judges
responsible for all sentencing. An anomaly of the court-martial
sentencing process is that a military accused may request to be
sentenced by military judge alone only if he or she elects to be tried
without court members. The Commission urges Congress to authorize a
military accused to permit the military judge to pass on a sentence even
if a trial has proceeded before court members. Further, the Commission
recommends that serious consideration and study be given to making
military judges responsible for all sentencing in all cases, and to
granting military judges the authority to suspend all or part of a
court-martial sentence. Such judicial powers are closely related to the
Commission's suggestion that the military judges be given enhanced
independence and authority to manage pretrial matters.
E. Instruction on conscientious objection. The armed forces'
current management of conscientious objectors is hindered by inadequate
trial instructions and administrative shortcomings, both of which the
Commission believes should be addressed. Protecting the rights of
conscientious objectors is a particular concern at court-martial, where
an individual who has professed principled opposition to military
service is judged by persons who have embraced that very service.
Military judges should issue clear instructions explaining the legal
status and responsibilities of a servicemember who has made a claim of
conscientious objection but is awaiting a decision on his or her status.
The services should also study ways to coordinate better the criminal
and administrative processes in these cases, particularly when criminal
charges are brought against a servicemember whose discharge for
conscientious objection is pending.
F. Jurisdiction of the military appellate courts. In the
aftermath of the Supreme Court's decision to limit the authority of the
United States Court of Appeals for the Armed Forces in Clinton v.
Goldsmith(12), the Commission believes that further study to clarify the
jurisdiction of appellate courts should be undertaken.(13) However, if the
authority of military judges were enhanced as suggested above in III.B.,
the question of appellate jurisdiction would begin to resolve itself,
since military appeals courts clearly possess authority under the UCMJ
to review the rulings of military judges at trial.
G. Pre-trial and trial procedures. The Commission received a
number of suggestions concerning improvements to the actual trial
process. For example, many submissions suggested that the Article 32
officer should be either a military judge or a field grade judge
advocate with enhanced powers to issue subpoenas, and to make binding
recommendations to dismiss charges where no probable cause was found.
Others recommended increasing the number of peremptory challenges for
both the government and the defense, permitting lawyer voir dire,
granting military judges contempt power over both military personnel and
civilians during trial, and allowing witnesses to be sworn by either
military judges or clerks. The Commission takes no position regarding
these suggestions, but believes that like many of the other issues
presented, these comments are worthy of further study and full
consideration.
V. Appendices
A. List of Topics
B. List of Witnesses
C. Submissions
D. Independent Judiciary Report of the Joint Service Committee on Military Justice
E. Bibliography on Reform and Military Law
F. Military Justice Websites