Top 10 military justice stories of 2010–#1: The debate over whether the military justice system can function in a combat environmentBy
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.