The United States’ military has continually been at war for more than nine years.  The central reason the military justice system exists is to provide a fair and efficient justice system and means to ensure good order and discipline that the military can take with it wherever it fights.  Do we have such a portable military justice system today?  No, argued MAJ Franklin D. Rosenblatt in his provocative article, Non-Deployable: The Court-Martial System in Combat from 2001 to 2009, published in the September issue of the Army Lawyer.  The article advances the memorable “Burger King Theory”:

If a Soldier can eat at Burger King, he is also more likely to face court-martial for any serious misconduct he may commit.  If he is deployed somewhere without a Burger King, it is less likely that his misconduct will be addressed by court-martial.  This notion, which suggests that combat zone courts-martial are rare except on stable, large, garrison-style bases, can be called the Burger King Theory.

Id. at 21 (footnotes omitted).

MAJ Rosenblatt surveyed military justice data and after-action reports from Iraq and Afghanistan.  Page 14 of the article includes a very interesting data compilation.  Among the facts MAJ Rosenblatt discovered were the following: 

1.  “The thirty-seven special and general courts-martial tried in Iraq in 2003 did not begin until later that summer, after ‘active combat’ ended. . . . [N]o special or general courts-martial were conducted in Afghanistan until 2004, the fourth year of that conflict.” Id. at 16.

2. COL Kathryn Stone, who served as the 10th Mountain Division’s SJA, explained that it would have been nearly impossible to hold a court-martial in Afghanistan during early combat operations:

We would have had to fly in a TC [trial counsel], TDS [trial defense services] Counsel, Judge, court-reporter, etc., and not only were flights erratic but the priority on flying in personnel were more troops and beans and bullets. There was no place to quarter any visitors—water and food were scarce, and there really was no downtime in which to pull our limited troops off of their operational duties in order to run a court.

Id.  CLAMO found that “[c]ases involving more serious misconduct were transferred to the United States for prosecution due, in part, to the austere conditions in Afghanistan.”  Id.

3.  “The most common court-martial difficulty cited by deployed units was securing the live testimony of witnesses.” Id. at 17.  A 1st Cavalry Division after-action report stated that a “contested rape case shut down a line company for almost a week as they moved witnesses and managed the other logistics associated with trial.” Id. at 21.  Witness production issues sometimes led to moving the case out of the theater of operation to the United States.  Id. at 17.

4.  “In early Iraq, at least three Army divisions each decided not to try cases. The 82d Airborne Division declared its commander a General Court-Martial Convening Authority (GCMCA), but only for the purpose of appointing investigating officers for certain administrative investigations. The 101st Airborne Division ‘made the decision not to try any general or special courts-martial in the deployed theater” during its yearlong deployment. Likewise, the 3d Infantry Division did not select a panel and ‘did not try any general or special courts-martial in the deployed theater before it redeployed in August of 2003.'” Id. at 17-18 (internal footnotes omitted).

5.  “Units also mentioned the lack of easy access to a military judge in theater as a reason for diverting misconduct away from the court-martial track.” Id. at 18.

6. A judge advocate assigned with the 82d Airborne Division explained that his unit held summary courts-martial to try offenses that would normally result in a general court-martial. Id.

7.  “[M]ost units limited their courts-martial to guilty pleas,” often by offering unusually lenient pretrial agreements to achieve a guilty plea. Id. at 19-20.

MAJ Rosenblatt’s article portrays the military justice system as failing to meet its principal task of providing justice and promoting good order and discipline wherever the U.S. military goes.

While MAJ Rosenblatt’s article is probably the most systematic look at the issue, his is hardly the only voice arguing that the military justice system is doing a poor job meeting the demands arising from constant combat operations.  We’ve seen repeated criticisms of the military justice system’s handling of alleged crimes arising in combat zones, from Congressman Dan Burton’s and others’ objections to Major General Charles Cleveland’s decision to court-martial three Navy SEALs accused of abusing an Iraqi detainee (all of whom were acquitted) to the the Leavenworth 10 Freedom Ride, protesting the convictions and sentences of ten Soldiers and Marines who were found guilty of some form of homicide arising from the killing of Iraqis.

Concerns that the military justice system has become too unwieldy to function in a deployed setting is a recurring theme.  MAJ Rosenblatt cites General William Westmoreland and Major General George Prugh’s article, Judges in Command: The Judicialized Uniform Code of Military Justice in Combat, 3 Harv. J. L. & Pub. Pol’y 1 (1980).  Other examples include Lieutenant Colonel E. A. Gates and Major Gary V. Castla’s article, Report to the Judge Advocate General by the Wartime Legislation Team, 104 Mil. R. Rev. 139 (1984), and Colonel Ted B. Borek’s article Legal Services During War, 120 Mil. L. Rev. 19 (1988).  But the issue continues to arise because it is so important.  MAJ Rosenblatt’s article should be the catalyst for a serious debate over whether today’s military justice system is capable of functioning effectively in a combat environment and, if not, what can be done to fix it.

22 Responses to “Top 10 military justice stories of 2010–#1: The debate over whether the military justice system can function in a combat environment”

  1. Anonymous says:

    I didn’t realize there was a debate. Of course our MJ system can’t operate in a combat environment. Why would anyone familar with the system think differently?. The only question I have is: Did it ever function well in a combat environment?

  2. Dew_Process says:

    Anon 0021: The answer is “yes.” For corroboration, see the 2 great books by LtCol Gary Solis, USMC (ret): Marines and Military Law in Vietnam, and also Son Thang: An American War Crime, as well as a comprehensive Book Review by the late Robinson O. Everett: http://www.law.duke.edu/lens/publications/050698

    Or, former Army JAG John S. Barry’s book, Those Gallant Men: On Trial in Vietnam, which focuses on the Trial of a group of Special Forces accused of murdering a Vietnamese double-agent.

    For a fascinating account of an Army GCM in Germany in early 1945, see Wade v. Hunter, 336 U.S. 684 (1949). If the Army could convene not one, but two GCM’s as it was pushing across Germany, certainly with todays digital communications, it should be much easier.

    For anyone with access to the old “Red Books,” the first volumes of the “C.M.R.’s” are filled with cases tried in and during the Korean War.

    With no disrespect to COL Stone, her response signifies that the “problem” isn’t the flexibility of the military justice system, but rather the inflexibility of senior leaders. If good order and discipline are necessary components of an effective fighting force, as in Hunter or Son Thang, you (especially Commanders) either make “time” or shift the court-martial to a rear detachment.

    If a commander decides that his/her “operations” must take precedent over a court-martial, that is a command decision which shows that the UCMJ is functioning as it was intended — not evidence of its inflexibility.

  3. Rob M says:

    I thought the political opposition to the SEAL CMs and the Leavenworth 10 were more critical of the very idea of criminal trials for the alleged conduct, along the lines of “it’s in a war zone/they’re the bad guys/these guys are heroes not criminals,” not criticisms of the UCMJ’s procedural complexity.

  4. Anon says:

    As a former STC in Iraq, my experience is 100% described in Maj Rosenblatt’s article. We did a handful of guilty pleas and two contested trials in theater. The facts of the cases weren’t that big a deal, it was all about the logistics. The WW2 and Korean cases were of a different era, different military justice system (lots of non lawyer DC in Korea) and the logistics weren’t as tough. if you read Mr Solis’ great book you will see that by Vietnam the system was hard pressed by logistics. We called it ” The Logistical Defense,” facts be damned it was hoping that good military character retiree witness living in Florida refused to come to Iraq and forcing the Govt into a tough position. of course the UCMJ doesn’t work when deployed but you must try to make it work. what they needed in Iraq was a military brig, which they didn’t have. Getting into trouble was a free ride home, at least in Vietnam you could your time in theater which probably stunk.

  5. Dwight Sullivan says:

    Rob M, I concur with your observation. I might have phrased that badly (I’ll blame it on late-night blogging). I wasn’t trying to offer the SEALs/Leavenworth 10 criticisms as examples of the phenomena that MAJ Rosenblatt discussed but rather as other indictments of the military justice system’s performance dealing with in-theater offenses.

  6. Robert Shaines says:

    I was an AirForce JAG officer in Korea in 1953; Believe me the trials were fast and orderly in a combat zone.Most commanders were of the opinion that swift justice was necessary for good order and discipline, See my book “Command Influence, “A Story of Korea and The Politics of Injustice,which deals with the early days of Air Force JAG; available via Amazon and Barnes & Noble

  7. Michael Lowrey says:

    Major Rosenblatt’s article does a great job of identifying the issue. Beyond that though, I have the same reaction as to the related issue of CMs being down: More data and details please.

    One of the major limitations I see in both discussions is that all misconduct is lumped together. Yet even Rosenblatt admits that not all cases should be tried in theater. So the first thing, it seems to me, is to quantify and qualify exact what sorts of cases aren’t being tried at all, are being sent back to the U.S. for trial, what sorts of plea deals are being struck etc.

  8. Anonymous says:

    It is 100% logistics. If the unit wants to do the case in theater, any DC with half a brain will request witnesses from out of theater because getting them into theater is a pian in the a–. If the unit then decides to send the guy back for trial in CONUS, DC should request deployed witnesses who are in theater because it’s a pian in the a– to get them out. I am not saying this is bad; on the contrary, this is good lawyering. But unless you have lived this headache as a TC, you have no idea what I am talking about. Every little movement of a body throughout the AOR requires several levels of approval, etc. CAs see it is much less painful to deal everything out. And that usually involves redeployment and doing the dive in CONUS.

  9. publius says:

    anon@1359– exactly. Getting cc’d on Mom and Dad’s e-mail to DC that of course they would be willing to come to a war zone to testify on behalf of their son, and if denied that privilege they might just write a CONGRINT, is a rare pleasure. “Deal it, sir. Send it to the rear” is the only responsible advice TC can give.

  10. Southern Defense Counsel says:

    Now, I’m confused. What “right” does Snuffy have to get Mom and Dad in person to testify at his CM? Unless they are merits witnesses (which I think would be odd, usually), I’d say none. This is a perfect example where RCM 1001(e)(2) is appropriate. Granted, getting a CM in place in a war zone is a C-F. But I doubt that DC really can game the system that much.

  11. publius says:

    “What “right” does Snuffy have to get Mom and Dad in person to testify at his CM? Unless they are merits witnesses (which I think would be odd, usually), I’d say none. This is a perfect example where RCM 1001(e)(2) is appropriate.”

    That’s certainly the argument. To the MJ. In theater, though, the more important conversation is
    CA: “What is this shit, Judge?”
    TC: “MJ probably won’t grant it, sir.”
    CA: “Probably? I’m fighting a war here, Judge. I don’t need Mom and Dad in the chow hall. Get rid of this.”
    TC: “Yes sir. It’s going to the rear.”

    Of course, “Mom and Dad” is the but the most extreme example. Experts, recently rotated witnesses, etc…DC can wreak havoc in theater.

  12. Anon says:

    SDC, I suppose from your comment you have not litigated in a war zone. Mom and Dad are chump change. It is the good military character witnesses that hurt, or the guy that redeployed after a year in theater that needs to come back. Call your DC buddies, they will tell you the logistics nightmares they can cause.

    I still think that the UCMJ era of the early 1950’s vice today is different. How many Korean cases brought people from the states? Or had experts brought from America? Different litigation for a different era. Every DC in theater digs in up front based on logistics. It was the rare case where the evidence was overwhelming which was dealt quickly.

  13. Dew_Process says:

    Both the UCMJ and the MCM deal with these issues in Art. 49, UCMJ and RCM 702, providing for witness depositions; something which seems to have fallen into disuse of late.

    I’ve had occasion to research the early Korean cases – experts were routinely either brought in from the Army Crime Lab in Japan, or deposed. USACIL used to have branch labs in both Germany and Japan, so the “logistical” problems were significantly reduced.

    Anon 0639: The UCMJ went into effect in 1951, so the majority of cases tried in Korea were under it. True, that in non-BCD specials, unless the TC was a lawyer, you might not get a lawyer as your DC. But, the system has always been “hard pressed for logistics.” But, the difference in military justice litigation, is that unlike the by-gone era, Convening Authorities can’t overrule Military Judge’s logistical determinations. But, RCM 906(b)(11) always gives the gov’t the right to change the trial’s venue for “the convenience of the Government.”

  14. Anon 1/3/11 0021 says:

    Of course we’re all ignoring the major factors in play, the factors that render our MJ system a joke: time and money. The non-lawyer CA who has to pay for the CM out of his or her meager budget cares much more about time and money than he or she does about justice. Even more so combat deployed.

    We are very quickly moving past the point where we prosecute bad actors because it’s the right thing to do. If CAs could merely ADSEP ALL of their criminals without drawing an investigation or complaint, I firmly believe our CM numbers would drop to almost zero.

    In the end, tt’s all about getting the scumbags out the military in the fastest way possible. And that, by the way, is the problem with being a defense counsel who wants to get MJCT qualified: Your job is to stay out of the courtroom, and (frankly) the CAs make that all too easy.

  15. Anon says:

    Ten years from now there won’t be miljus. It will be all adseps and cases go out in town. It will happen. Navy will lead that way.

  16. Dew_Process says:

    Anon 0551 – I think it’s already happening and the Army is leading the way. In 2009, the Colorado Public Defenders office had a special 2 day training session on dealing with “military” clients. It seems that Fort Carson was not asserting jurisdiction over most things happening off Post and the PD’s didn’t have a clue about obtaining military records, witnesses, military collateral consequences, etc. — indeed, the Army did that with Hennis, when the State first prosecuted him.

    While in CONUS there may be some rationale for this, it sort of flies in the face of the “good order and discipline” argument. But, then again, a quick AdSep and they’re done with a problem.

  17. Michael Lowrey says:

    Dew_Process: The other big Ft. Bragg case is actually a better example than Hennis. Accused serial rapist Spc. Aaron Pernell was tried by the Army for his on base rapes. The Army left the off-base sexual assaults etc. for the state to try.

  18. publius says:

    Laurean/Lauterbach murder trial occurred in town as well, to the surprise of some. A Marine murdered a Marine, but the locals handled it. Of course, North Carolina cut a deal w/ Mexico (where Laurean had fled) not to seek the death penalty.

  19. Anonymous says:

    The reason Laurean got kicked back was the command knew about their relationship and failed to adequately protect her, so the MC was viewed with unclean hands.

  20. publius says:

    Fair enough. But an argument could be made that, in that case, the Corps had even greater responsibility to prosecute.

  21. Anon says:

    Sometimes cases are sent out in town because evidentiary issues and the manner in which non military law enforcement conduct their investigation meshes better with local courts than military courts.

  22. Anonymous says:

    I think we will see more cases kicked back to the feds/locals; I would push for that if I were an SJA because the sentences in courts for serious crimes are a joke. States and the feds have mandatory minimums and guidelines.