It’s time to change our understanding relating to the investigation and prosecution of offenses under the Uniform Code of Military Justice
In 1955 the Department of Justice (DOJ) and the Department of Defense (DoD) signed a memorandum of understanding relating to the investigation and prosecution of offenses where the offender could be prosecuted by either the DOJ (in district court) or the DoD (in a court-martial). The memorandum established that for most offenses, and under most circumstances, civilian prosecutors would investigate the offense and, where appropriate, prosecute the offender in the civil justice system. In turn, the military would investigate and prosecute offenses at courts-martial only under certain circumstances involving particular military interests.
But things changed dramatically in 1984 when the memorandum of understanding was revised. Other than offenses involving corruption and frauds against the DoD, the revised memorandum established a preference for trial by court-martial so long as the offense is one that is “normally tried by court-martial.” Compared to the 1955 memorandum, this new memorandum was a seismic policy shift.
Moreover, it did not occur in a vacuum. One year earlier Congress strengthened the military justice system with the Military Justice Act of 1983. Then, in 1987, the Supreme Court expanded the reach of courts-martial by overruling a 1969 decision that had limited military trials to only offenses with a “service connection.” The deeply-divided Court determined that a court-martial can try any offense, without a need for a service connection, so long as the accused is subject to the Uniform Code of Military Justice. These developments marked the beginning of an era where the military justice system experienced explosive growth, as the old preference for civil trials gave way to the new preference for courts-martial. Gradually, nearly all offenses became the type “normally tried by court-martial.”
Yet three decades after the 1984 policy change, the military justice system is under withering attack for a perceived failure to hold a particular type of offender – the sexual predator – accountable. Each month brings a new proposal to “fix” the system, and Congress is poised to take dramatic action. But these proposals share a common problem: they all see the military justice system as flawed, when the real flaw is in how and when the system is employed.
Our military justice system is a model for the world, but a court-martial is a poor replacement for the traditional American criminal justice system. A court-martial has members, not jurors; a military trial counsel, not a career prosecutor; and the commander decides which charges go to trial and holds veto power over the verdict and the sentence. A court-martial also treats victims differently from the civil justice system, leading to many complaints. And a court-martial is less accessible to the increasingly savvy public that wants to observe judicial proceedings and access judicial records. These and other inherent limitations of the military justice system were recognized back in 1955, when the DoD agreed that the newly-created Uniform Code of Military Justice would be used only for offenses evoking a particular military interest, and that the civil justice system would remain the preferred venue for the majority of crimes.
The policy change made in 1984 sparked a flame that has grown into a firestorm. Using courts-martial to prosecute offenses that are traditionally prosecuted in the civil courts, and under situations not involving a particular military interest, has wrought chaos in an otherwise model justice system that carefully balances the needs of commanders with the rights of those in their charge. Today, after three decades of this experiment, it is time to remember the lessons of the past. The military justice system is a tool to enforce good order and discipline and address the unique needs of the armed forces, it is not a separate-but-equal venue for general criminal prosecutions of the men and women who serve our country in uniform.
Addressing the scourge of sexual assault is important, but it’s not a reason for Congress to make radical changes to the Uniform Code of Military Justice. If Congress enacts legislation that restricts the role and responsibility of the commander, gives the commander’s authority to a lawyer, or burdens the process with greater procedural hurdles and administrative oversight, it will not bridge the divide between the military and civil justice systems. Rather, Congressional action to change the Code in order to affect the way sexual assault is prosecuted in the military is a legislative “fix” for a policy problem.
Instead, before Congress takes any action, the Secretary of Defense and the Attorney General should revise the memorandum of understanding to reconsider the policy change of 1984, acknowledge the Constitutional preference for civil trials, and retain the court-martial as a special tool for commanders that is reserved for cases involving particular military interests. They need not return to the 1955 standard, or reverse the progress of the past 60 years, but they should strike a balance that considers the nature of the offense, the status of any victims, the needs of military, and the interests of justice, when determining where, how, and by whom an offense will be prosecuted.
Such a policy will restore the traditional roles of the civilian prosecutor and the civil justice system, will ensure that traditionally-civil offenses like sexual assault are prosecuted in the justice system designed specifically for that purpose, and will provide the most protection for the rights of the accused, the interests of the victim, and the needs of society as a whole.