A PRIMER ON COURT-MARTIAL PRACTICE (PART I)

As the trial process begins for Private First Class Bradley Manning, charged with violations of three articles of the Uniform Code of Military Justice, the blatant ignorance of the media with respect to courts-martial is becoming evident. Those useful kidiots who are seeking to make him a hero or a martyr are misrepresenting the nature of modern military justice. For instance, in a POLITICO article written by Josh Gerstein, he butchered the facts about military law and procedure, seemingly to make a point against the system. PFC Manning is alleged to be the Wikileaks source of hundreds of thousands of pages of classified documents. His case is currently before an investigating officer appointed pursuant to Article 32, Uniform Code of Military Justice.

To understand the system, let's start with the basics.

The Uniform Code of Military Justice. The UCMJ is federal law, enacted by the Congress and signed into law by the President. Under Article I, section 8 of the Constitution, "The Congress shall have Power . . . To make Rules for the Government and Regulation of the land and naval forces." The Code is comprised of some 144 articles which are codified under Title 10 of the United States Code at sections 801 to 941. (There are several amendments which added articles and were numbered as Article XXXa.) Included are the “punitive articles” (Arts 77 through 134) which define crimes under the Code. The others are definitional or procedural articles.

The UCMJ was enacted in 1950 as a single (uniform) body of criminal and procedural law for all of the uniformed services. Prior to 1950, there were two separate bodies of such law: the Articles of War (applicable to the Army, Air Force, and, when operating with the Army, the Marine Corps) and the Articles for the Government of the Navy (known lovingly as the “Rocks and Shoals,” i.e., something to be steered clear of).

The UCMJ was an extensive re-writing of prior military and naval law, meant to address, in part, perceived unfairness of the old systems as discovered when it was applied to a 12 million man citizen army during World War II. Two additions are particularly interesting.

Article 31 provided protection against self-incrimination and requiring a warning of that right before anyone suspected of an offense was questioned, presaging Miranda v. Arizona by over a decade. In fact, Miranda still does not come into force until a person is in custody, so Article 31 is actually broader than Miranda.

Article 32 provided a right that had been denied the Armed Forces since the adoption of the Constitution. The Fifth Amendment provides, in part, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. . ..” (Emphasis added.)Prior to the enactment of the UCMJ, charges could go to trial simply upon the oath of the accuser.

Article 32 requires that before a charge is sent to trial by General Court-Martial, the officer exercising general court-martial convening authority must first convene an investigation to determine whether or not there is probable cause to believe that (1) an offense under the UCMJ has been committed and (2) the accused committed it. The investigating officer is appointed by the GCM convening authority and need not be a lawyer

Courts-Martial. Courts-martial are as old as armies. The need for discipline meant that the crimes that were committed by soldiers, especially uniquely military offenses, mandated a system that could be employed at sea and in the field. Some things are crimes in the military that are not in civilian life. If a person comes to work late while working for General Mills, General Motors or General Electric, he cannot be sent to jail. If he works for General Petraeus, the stockade may be waiting.

Courts-martial are not standing courts. Each time charges are referred to trial by a convening authority, discussed below, a new court comes into existence and is authorized to adjudicate only the charges and the accused (defendant)named in the convening order. The convening order names the military judge, the trial and defense counsel, and the members of the court.

There are three types of courts-martial.

The Summary Court-Martial is a one-officer court. He is rarely a lawyer and acts as both prosecutor and defense counsel. A summary court can try only enlisted personnel and the maximum sentence imposable is limited to 30 days confinement, forfeiture of two thirds pay for one month, and reduction in one pay grade.

The Special Court-Martial is comprised of a Military Judge, not less than three members of the court who determine guilt or innocence, and if guilty, the sentence, and in practice, a trial counsel and a defense counsel. A special court-martial can impose a maximum sentence of confinement for one year, forfeiture of two thirds pay for one year, and a bad conduct discharge.

The General Court-Martial is comprised of a Military Judge, not less than five members of the court who determine guilt or innocence, and if guilty, the sentence, and in practice, a trial counsel and a defense counsel. A general court-martial can impose a maximum sentence of death, if allowed by law, confinement for life, and forfeiture of all pay and allowances, or any lesser permissible sentence.

Until 1968, the court-martial was quasi-judicial. Every commissioned officer received extensive training in military law and, thereafter, was deemed qualified to serve as a prosecutor (trial counsel) or defense counsel in trials by Special Court-Martial, the maximum sentence imposable then being forfeiture of two thirds pay for six months, confinement at hard labor for six months, reduction to the lowest enlisted pay grade, and a bad conduct discharge (“six, six, and a kick”). Three commissioned officers, none of whom had to be a lawyer, comprised the court, and the president of the court, the senior of the three, ruled on objections and motions.

General Courts-Martial used judge advocates as defense counsel, trial counsel, and the “law officer” who advised the members of the court on the law. However, the president still made the final rulings on matters of law.

The 1968 amendments provided that accused in most special and all general courts-martial had a right to lawyer counsel. A judge advocate would be detailed as defense counsel, and the accused could, if he wanted, retain civilian defense counsel. The trial counsel in a special court could still be any officer, but in practice, was also a judge advocate. Most importantly, the amendment also created the “military judge,” a judge advocate who had been certified by the Judge Advocate General of his service as qualified to serve as a judge and who had been specially sworn to act in that capacity.

A judge advocate is an officer who is a member of the bar of the highest court of some state and who has received special training in military law. Upon completion of that training, he is designated a judge advocate by the Judge Advocate General of his service and is specially sworn as a trial and defense counsel. In other words, contrary to some folks’ belief, a military lawyer is, indeed, a lawyer.

The other two principal actors in the military justice system are the convening authority and the staff judge advocate.

Convening Authority. The convening authority is a commanding officer or other person who, by service regulation, is authorized to convene a court-martial. Almost always a commanding officer, the convening authority is limited by regulation to the level court he may convene. In the Marine Corps, for instance, only a battalion commander (usually a lieutenant colonel) may convene summary and special courts-martial. Commanding Generals are usually the convening authority for general courts-martial.

In former practice, the convening authority had great leeway in determining the personnel of the court, but in modern practice, the military judge is appointed and made available by the regional judiciary activity, the trial counsel is designated by the staff judge advocate or local legal support activity, and the defense counsel is appointed and made available by the regional defense activity. The convening authority is still allowed to select the members of the court, subject to the standards set forth in the UCMJ.

Unlike in civilian criminal law, their is no such thing as prosecutorial discretion. Unlike distict attorneys and United States attorneys, the lawyers do not decide what cases go to trial--that is a command function exercised by a convening authority. Plea bargains must be approved by the convening authority, and he alone may limit the sentencing authority of the court.

After trial, the convening authority must take action on the record of trial. The most frequent actions taken are to approve the findings and sentence imposed, but he may, in his sole discretion,reverse any findings of guilty and may decrease any sentence imposed. Obviously, he cannot reverse a finding of not guilty or increase the sentence.

Staff Judge Advocate. The SJA is the principal legal advisor to a Commanding General and, when directed to do so, also advises subordinate commanders in the chain of command. The SJA has significant responsibilities when it comes to general courts-martial.

After an Article 32 investigating officer submits his report and recommendations, the SJA must give written advice to the convening authority regarding each charge and specification. His advice must specifically affirm that (1) the specification alleges an offense under the UCMJ; (2) the specification is warranted by the evidence indicated in the report of Article 32 investigation; and (3) a court-martial would have jurisdiction over the accused and the offense. He must also recommend the action that the convening authority should take, i.e., return the charges to the officer exercising special court-martial jurisdiction, or refer to trial by general court-martial, or refer the charges to a GCM as capital (or non-capital).

The convening authority is not required to follow that advice, but if he disregards the advice, he does so at his peril.