Unequal Justice
Military courts are stacked to convict--but not the brass. The Pentagon insists everything's just fine
At a moment when many of the 2.7 million men and women who serve in the active-duty armed forces, Reserves, and National Guard units may be called to put their lives on the line, it is an issue of particular urgency. Why is it, critics ask, that these men and women are governed by a system of justice that provides a standard of fairness inferior to that guaranteed to even the most hardened criminals who appear each day in America's civilian courts?
The question is not without foundation. A six-month investigation by U.S. News has documented a flawed criminal justice system in which injustices can easily occur. Though the cases almost never make headlines, every day across this land, and at American installations abroad, the Pentagon's legal bureaucracy gears up and tries a soldier, sailor, marine, or aviator by court-martial. Many are guilty as charged. Almost all are first-time offenders. Overwhelmingly, the accused are enlisted men and women--not general staff or flag officers. The odds, overwhelmingly, are that the accused will be convicted.
The law that governs the proceedings in the nation's military courts is the Uniform Code of Military Justice. Congress created the code 52 years ago to eliminate widespread injustices that occurred in court-martial proceedings through- out the nation's armed services in World War II. Lawmakers have not thoroughly reviewed the system in more than 30 years and seem in no mood to do so anytime soon. As a result, critics say, the code has failed to embrace key procedural safeguards available in civilian courts and to keep pace with the military justice systems of some U.S. allies, including Britain. "There is a shocking lack of interest on Capitol Hill," says Eugene Fidell, a Washington attorney and expert in military law. Kevin Barry, a retired Coast Guard captain and former chief military judge, is more pointed. "The code badly needs a face-lift," he says. "It either should be reformed, or it should be abolished."
Bread and water. Top military lawyers don't agree. They say their system is fair--but strict enough to ensure maintenance of the high quality of discipline necessary to successful military operations. To outsiders, these lawyers say, some punishments may seem archaic, but they are necessary. Bread and water and three days in the brig can help adjust the attitudes of difficult sailors, they explain. "We don't have a society where a kid can come in and say, `I am not coming to work today.' We can't tolerate that," says Brig. Gen. Kevin Sandkuhler, the Marine Corps's top lawyer. "We wouldn't get marines willing to go around in strange situations, jumping off helicopters and going to get bad guys."
The Air Force's top lawyer, Maj. Gen. Thomas Fiscus, the judge advocate general, adds: "I consider it my No. 1 job to make sure that the military justice system operates effectively, operates fairly, and creates the climate of good order and discipline."
The U.S. News investigation is based on an examination of about 1,000 court-martial cases filed in military appellate courts. The magazine also interviewed service members, civilian lawyers who practice military law, and officials from the various services and the Pentagon. Among the magazine's principal findings:
advertisement
