A pair of articles published by the War on the Rocks blog debate whether the military justice system can handle serious cases.
Professor James Joyner and retired Marine LtCol James Weirick write Sexual Assault in the Military and the Unlawful Command Influence Catch-22:
For minor offenses — many of which aren’t crimes in the civilian world — the uniqueness of the military occupation, exigencies of location, and considerations as to whether an individual is otherwise a “good soldier” make the longstanding practice of commanders having a heavy influence vital for “good order and discipline.”
But felonies are a different matter. There, the aim is punishing transgression and separation of a bad egg from not only the military ranks but society at large. The civilian courts, lacking the conflict of interest inherent in military command, are simply the better venue for dealing with that.
The shared experiences of our allies — the United Kingdom, Canada, and Australia — have demonstrated that removing felonies from their systems of military justice has increased the fairness and transparency of criminal trials, while maintaining the commander’s ability to ensure good order and discipline.
Retired Air Force Major General Charles Dunlap responds with: Civilianizing Military Justice? Sorry, it Can’t – and Shouldn’t – Work:
Consider that the Supreme Court has observed (albeit in a different context) that the “complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments” adding a key reflection: “it is difficult to conceive of an area of governmental activity in which the courts have less competence.” Yet these are the very areas in which military discipline is so important.
Separate out “military” offenses from “civilian” offenses? Been there, done that. The Supreme Court finally gave up in 1987, finding that the military justice system had jurisdiction over all offenses committed by those in uniform. This could be an implicit recognition that in the extraordinarily complex task of preparing people to kill other human beings in the name of the state, the disposition of “civilian” misconduct cannot be separated from overall troop development and combat readiness. Savvy military leaders keenly understand the holistic nature of their leadership responsibilities, along with the imprudence of outsourcing discipline to civilians not equipped to deal with it appropriately and who do not bear the responsibility for battlefield success that is so intrinsically linked to a well-disciplined force.